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Saturday, April 30, 2005

About this blog - Disappointments, Part II

I started the Indiana Law Blog three years ago in part to fill a void in the reporting of Indiana appellate court opinions. I thought the courts could do better in making their rulings and related materials available to the public. When my other efforts to improve this failed, the blog seemed a good route to bring to a wider audience concrete examples of some of the things I thought could be made better.

The Indiana Courts website has a number of good features. For instance, the reporting of the Court Rules and proposals for change is very useful. And Indiana was among the first of the states to make video of appellate oral arguments viewable online.*

*[I do wish, however, that audios were available for downloading as MP3 files, as is the case with the 7th Circuit arguments, so that they could be listed to at one's convenience - judicial "podcasts." But this is a minor matter.]

My problems with the court site include:

Indiana has the rudiments in some of these areas. But nothing has changed in at least a half-dozen years. Other states, states like West Virgina and North Dakota, are far ahead of Indiana in making the work of the court available to, and useful to, the public. And they have accomplished this end in a simple, straight-forward, inexpensive manner. "We use our site ourselves" is the beginning to a speech made by a justice from one of these states in describing his court's site.

Starting with the last item in my list first:

Appellate Briefs.

Recall that in a posting Friday, available here, I quoted from the Dec. 31, 2003 New Year's Eve ILB wishlist. Among the items described as those which "could readily be accomplished by our elected/appointed officials, and would make a difference" was:

#2. Copies of briefs for cases before the Indiana Supreme Court [and Court of Appeals] made available online. When? At the same time they are filed with the Clerk of the Court.
Many other states make the briefs available online to the public. Indiana does not.

On April 14th David C. Lewis, Clerk of the Supreme and Appeals Courts, issued a press release announcing "Indiana Appellate Briefs Now Available Online through Westlaw." Some quotes:

Westlaw subscribers have several options for adding this service to their current subscriptions. Individuals who are not Westlaw subscribers may access the service with a credit card, paying on a per-use basis. * * *

"West's online briefs project takes us another step closer to providing the public with greater access to court records," said Clerk David Lewis. "We applaud West's commitment to this project. Not only does it provide Indiana's attorneys with a significant new tool, but it promotes our office's goal of openness and accountability in the judicial system." [emphasis added]

I'm not out to burn any bridges here, but I just don't think so. I think promoting West's project to sell the briefs makes it unlikely that they will ever be available online to the public at no cost.

Who, other than the parties in the case (who already are on the distribution list) might be interested in reading Indiana appellate briefs, if they were freely available?

In short, the same people who read the courts' opinions and listen to oral arguments on the Court's public website should be able to access the briefs there. Is is disappointing that they can't.

The Docket and Calendar

Here is the May calendar for the Supreme Court of North Dakota. The May cases are shown in the right hand column. Clicking an a case in the right column, such as Wed., May 4, 2:45 - Farmers Union etc. leads to a complete run-down on the case, including the two parties' statements of the issues, and links to the briefs, the lower court opinion, and the docket. Clicking the docket link leads to (at the bottom) a list of the docket entries.

Or start with the docket. Say you are looking for State v. Morrison. Type in Morrison. Try it out.

Indiana's Supreme and Appellate Court docket is here. Certainly it is better than no docket, but it is time for improvements. The docket is maddening to use, and delivers limited information. If you have used it before, you understand. If not, try it out. Type in Morrison. Say you were looking for "Michael Morrison." Pick one of the results. If it turns out to be the wrong one (very limited information is provided), you will have to start over from the beginning.

Here is a link to the Indiana Supreme Court's May calendar. It lists the upcoming oral argments, along with basic information. Compare it with the May 2005 calendar from North Dakota. Or the April 2005 calendar from West Virginia.

The Unavailability of Court of Appeals Not-for-Publication Decisions

Two concepts here need to be distinguished: (1) unpublished, and (2) non-precedential.

In the federal court system, "unpublished" no longer means unindexed and generally unavailable to the public. The question remaining in the federal system is whether the rules should be changed to allow these decisions to be cited -- i.e. to have precedential value.

In Indiana, the Court of Appeals panel issuing an opinion may designate it "not-for-publication." Because this large body of decisions is both unindexed and generally unavailable, the question of whether or not a particular NFP decision should have precedential value is pretty much a non-issue -- no one outside the court system and the parties to the case generally knows about it (although paper copies of the opinion are available if one asks for the case by name).

I can only estimate how many of the opinions issued by the Court of Appeals are NFP. I'd venture 2 out of 5. I feel strongly, as I've written several times in the past, that this workproduct of the court should be made available to the public, even if it may not be cited.

I am resisting the temptation to go on at length, but refer those interested to this ILB entry from Feb. 21, 2004. Scroll down to the paragraph that begins: "As reported by Howard Bashman's How Appealing ..." [More: See also this May 19, 2003 ILB entry.]

The Reporting of the Opinions.

So much more could be done in making the opinions of the Indiana Supreme Court and Court of Appeals accessible to the public.

Take a look at the entry page for the North Dakota opinions. You can search the body of available opinions, going back to 1996, by just about anything - case name, cite, topic, justice, etc. ("By justice" would be particularly useful in Indiana prior to a retention election, as I discussed in a post earlier this year.)

In addition, there is the option in North Dakota to search by month and year. So you can find, for example, all the opinions issued in April of 2005. Here is the result.

Click on one of the April 2005 decisions, such as Paulson v. Paulson, and you get this result. Some particularly compelling features include: (1) In the upper left hand corner, information on rehearing status; (2) Also in the upper left hand corner is a link to the docket, where one can access not only the docket, but the briefs and other documents, and audio of the oral arguments; (3) The decision itself is presented in well-formatted html, making it easy to read, and easy to distinguish internal quotations from other cases; (4) Cited court rules and decisions are hot-linked.

Finally, notice the numbering of the paragraphs - the opinions are issued in "medium neutral" format. For more information on medium neutral citations (as opposed to proprietary print citations tied to a vendor), see this entry on "Citations in Transition" from Cornell's "Introduction to Basic Legal Citation."

Posted by Marcia Oddi on Saturday, April 30, 2005
Posted to About the Indiana Law Blog

Environment - EPA will test Indianapolis yards for lead pollution

The Indianapolis Star is reporting:

Residents near a former lead smelter on the city's Near Eastside will hear next week about plans to clean up contaminated yards, a decade after county and state officials became concerned about the problem.

The U.S. Environmental Protection Agency will ask residents in the Martindale-Brightwood neighborhood to sign agreements allowing their yards to be tested for lead, a heavy metal that can cause developmental problems in children.

A smelter operated northwest of 19th Street and Hillside Avenue for about 25 years -- from 1946 to 1965 by American Lead and from 1965 to 1971 by National Lead, according to state records. Metal firms had operated at the site since the 1870s.

National Lead will pay for testing of about 250 yards, which should begin in June, and a cleanup of yards that show elevated lead levels, EPA officials said.

Posted by Marcia Oddi on Saturday, April 30, 2005
Posted to Environment

Friday, April 29, 2005

Ind. Decisions - Transfer list for week ending April 29, 2005

Here is the Indiana Supreme Court's transfer list for the week ending April 29, 2005. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, April 29, 2005
Posted to Indiana Transfer Lists

Ind. Law - Great post today on real property issues

Earlier today I posted this entry titled "Fate of subdivision turns on 1935 deed." Fellow blogger E. Thomas Kemp has used it as a takeoff to discuss the issue in depth. His entry begins:

So seldom does a news item present an opportunity to discuss the concept of a "fee simple defeasible," that I cannot let the opportunity pass.
He also took the opportunity to use the word "penultimate" in a sentence, something I've always wished to do.

Posted by Marcia Oddi on Friday, April 29, 2005
Posted to Indiana Law

Ind. Law - Governor's message on SEA 512, re annexation

Earlier today, in this entry, I quoted from a story by Niki Kelly in the Fort Wayne Journal Gazette where she reported that the Govenor had allowed SEA 512 to become law without his signature. Here is the text of the Governor's message on SEA 512:

Dear President Garton:

In accordance with Article 5, Section 14(a)(3) of the Constitution of the State of Indiana, I am permitting Senate Enrolled Act No. 512, enacted during the regular session of the 114th General Assembly and related to town government and annexation, to become law without my signature. I have filed the Act with the Secretary of State.

My decision not to sign reflects my degree of uncertainty as to the constitutionality of this bill, given that its annexation provisions may be interpreted to be impermissible special legislation under Article 4, Section 23 of our Constitution. As the Indiana Supreme Court held two years ago in a case involving a similar annexation statute, special legislation must be reasonably related to special or distinct characteristics that are inherent in the location to which it applies, and that location must be the only one possessing those special characteristics. In so holding, the Court found that, to pass constitutional muster, the special legislation must be supported by facts justifying the special treatment it affords to a locality.

I am not convinced that this test has been met by SEA 512, which provides certain annexation rights and benefits to various municipalities without identifying the factual basis on which to justify their special treatment under the law. On the other hand, our system establishes a presumption in favor of a statute’s constitutionality, and the Supreme Court, not the Governor, is the final arbiter of such questions. As a result, I am allowing the Act to become law without my signature.

Posted by Marcia Oddi on Friday, April 29, 2005
Posted to Indiana Law

Ind. Decisions - One today from the Supreme Court

Michael Allen Lambert v. State of Indiana (4/28/05 IndSCt)
[PUBLISHED ORDER CONCERNING SUCCESSIVE PETITION FOR POST-CONVICTION RELIEF IN CAPITAL CASE]

Introduction. Petitioner Michael Allen Lambert was convicted of murder and sentenced to death for killing a law enforcement officer acting in the course of duty. Lambert now asks leave to litigate in state court another collateral claim relating to the death sentence. Because we conclude that Lambert has not shown a reasonable possibility that he is entitled to relief, we deny his request. * * *

Conclusion. Lambert has not met his burden of establishing a reasonable possibility that he is entitled to post-conviction relief. Accordingly, we decline to authorize the filing of a successive petition for post-conviction relief. The Clerk is directed to send a copy of this order to counsel of record and to West Publishing for publication in the bound volumes of this Court’s decisions.

DONE AT INDIANAPOLIS INDIANA, this 28th day of April, 2005.

/s/ Randall T. Shepard
Chief Justice of Indiana

Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Boehm, J., dissents with opinion.

Rucker, J., dissents with opinion.

[Update 4/30/05] An AP story posted by WTHR 13 reports:
The Indiana Supreme Court turned down a death row inmate's request for a new appeal. The court voted three-to-two yesterday to let Michael Allen Lambert's death sentence stand.

Lambert was convicted of the 1990 murder of Muncie police officer Gregg Winters. He lost on a previous series of appeals. Now, he wants to file a new appeal. He says jurors might not have recommended a death sentence if a judge hadn't improperly allowed the victim's wife and others to give victim-impact statements during the penalty phase.

The high court said the testimony shouldn't have been allowed, but three of the justices said it wouldn't have made any difference.

Two of the justices dissented, however. They say there's no way to tell what the jury would have done, and Lambert should be allowed to make his argument in court.

Posted by Marcia Oddi on Friday, April 29, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Two today from the Court of Appeals; one from Tax Court

Stelko Electric v. Taylor Community Schools Bldg. Corp. (4/29/05 IndCtApp) [Contracts; Torts]
Kirsch, Chief Judge

Stelko Electric, Inc. (“Stelko”) appeals the trial court’s grant of summary judgment in favor of Taylor Community Schools Building Corporation (“Taylor”) and Hagerman Construction Corporation (“Hagerman”). On appeal, Stelko raises the following restated issues: [1] Whether the trial court erred in granting summary judgment to Taylor on the basis that the terms of the contract between Stelko and Taylor barred Stelko’s breach of contract claims. [2] Whether it was error for the trial court to grant Hagerman summary judgment on the basis that the “economic loss doctrine” barred Stelko’s negligence claim. * * * Affirmed.
BAKER, J., and ROBB, J., concur
Arnold Avant v. Community Hospital and Fitness Pointe Health Club (4/12/05 IndCtApp) [Contracts]
[Initially NFP]
Crone, Judge
* * * [T]he plain language of this Release was specific and explicit as to Avant’s agreement to indemnify Fitness Pointe for its negligence, including negligent acts of its employees. When Avant signed the Release, he knowingly and willingly accepted that burden. Therefore, the trial court did not err by granting Fitness Pointe’s motion for summary judgment. Affirmed.
RILEY, J., and ROBB, J., concur
Gary M. Newby v. Ind. Dept. of State Revenue (4/27/05 IndTaxCt) [CSET]
Fisher, Judge
Gary M. Newby (Newby) appeals the final determination of the Indiana Department of State Revenue (Department) assessing him with controlled substance excise tax (CSET). The matter is before the Court on Newby’s motion for summary judgment. The issues before the Court are: (1) whether double jeopardy precludes the Department’s assessment of CSET against Newby; and (2) whether the imposition of CSET violates the provisions of Newby’s plea agreement with the State of Indiana. For the following reasons, the Court DENIES Newby’s motion for summary judgment.

Posted by Marcia Oddi on Friday, April 29, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts one today

United States v. Cook, John A. (ED Wis.) [7 pp.]

Posted by Marcia Oddi on Friday, April 29, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Supreme Court advertises for access to online legal research

This announcement, posted 4/28/05 on the Court's website, begins:

This is an Announcement issued by the Division of State Court Administration of the Supreme Court of Indiana (the “Division”) on behalf of the Judicial Technology and Automation Committee (JTAC). The announcement solicits expressions of interest and information from all persons and entities who wish to be considered as a provider of the services described below. Persons with such an interest are invited to comply with the procedures also described below.

Since September 2001, JTAC has had an arrangement with LexisNexis to provide all trial court judicial officers of courts of record and circuit court clerks in the state of Indiana with access to online legal research. We currently have approximately 450 judicial officers and 92 circuit court clerks. In addition, JTAC’s arrangement with LexisNexis included favorable pricing for such services for other Indiana state and local government agencies. This arrangement terminates on June 30, 2005.

JTAC seeks to continue providing access to such services and has therefore established this Public Notice of Contracting Opportunities (PNCO). The selection of a vendor and the award of any contract of the type described herein is within the judgment and discretion of the Division. This announcement is intended to initiate the process to provide the Division with information helpful to it in the exercise of its judgment to evaluate the qualifications and proposals of various service providers and to determine the actions to be taken to advance the best interests of the state judiciary and the citizens of the State of Indiana. Neither the Division nor any other person creates any obligation, expressed or implied, by issuance of this announcement or by receipt and consideration of any responses. * * *

JTAC has a keen interest in facilitating the availability of legal research data to all city, town, county, and state Government Employees. * * *

Posted by Marcia Oddi on Friday, April 29, 2005
Posted to Indiana Courts

About this Blog - Disappointments, Part I

One of the reasons I started the Indiana Law Blog was to fill a void in the reporting of Indiana appellate court opinions. I'll talk about that more in a later entry.

I also hoped to use the blog to point to other areas where important legal information needed to be better reported or made more readily available. But little has changed. Below is the 2004 ILB Wish List. Item #1, of course, stands in a class by itself. The remaining items, however, could readily be accomplished by our elected/appointed officials, and would make a difference:

This is New Year's Eve [12/31/03]. Here is what the Indiana Law Blog would like to see for Indiana in the New Year. Maybe not all at once, but at least a start.

1. Women (note the plural) on the Indiana Supreme Court. Current status: Five men, no women.

2. Copies of briefs for cases before the Indiana Supreme Court made available online. When? At the same time they are filed with the Clerk of the Court. [See more about this in an entry this afternoon]

3. The Debates of the Indiana Constitutional Convention of 1850, the Convention Journal, and related documents made readily available on CD-ROM or DVD, and priced right for the student. Incredibly, these books are out-of-print -- I had to slowly assemble my collection from dealers all over the country.

4. I've got more CD/DVD wishes - the House and Senate Journals since Indiana became a State; the Acts of Indiana for the same time-span. Scanned, so that we can see the printed pages. Electronic finding aids would also be nice, but the important thing right now is to capture all this history and make it available before it totally disintegrates.

5. A booklet containing the Constitution of the State of Indiana, and including all the changes that have been made over time. Also the 1816 Constitution.

6. The Indiana Historical Bureau puts out an invaluable series titled "Constitution Making in Indiana." Volume I, 1780-1850; Vol. II, 1851-1916; Vol. III, 1916-1930; and Vol. IV, 1930-1960. These volumes are compilations of source materials. As stated in the Preface to Volume III:

As in the preceding volumes, the field has been limited to documents bearing some sanction of authority, including in this instance, activities of the General Assembly, governors' messages, party platforms, official ballots, court decisions, and opinions of attorney-generals. They have been taken from the printed House and Senate Journals, the Laws, and the Court Reports, supplemented when necessary by original documents, printed bills, or manuscript records from the office of secretary of state.
What we'd like to see in 2004, of course, is: Volume V, 1961-2000! Plus a plan for the future of this publication , which is such an invaluable historical resource for the Courts, the Indiana General Assembly, and all of us citizens of Indiana.

Posted by Marcia Oddi on Friday, April 29, 2005
Posted to About the Indiana Law Blog

About this blog - More on "Thanks for the notes and thoughts - they are much appreciated"

Updating the ILB entry from Wednesday, thanks for the notes and wishes from:

Michael Kramer, Judge, Noble Superior Court 2 - "I wish to join the voices thanking you for your great service to the bench and bar. I will be at a loss next month without checking your blog throughout the day. This has been a great service that I have relied upon and will dearly miss."

E. Thomas Kemp, Richmond attorney, posted a second entry in his blog, Kemplog.com, that included this: "The termination of such a remarkable personal endeavor demands due respect, so I will not focus on my personal loss of a key source of information that I have come to rely on in my job. Rather I would like to salute Marcia for three years of hard work and high standards of production."

What can I say, other than: "Thanks all, it has been great fun!"

Answers: I've received a few questions - here are the answers.

Yes, I will leave the un-updated Indiana Law Blog online, at least for the time being.

Yes, to several of you who have asked, I will continue to do one thing -- post the Indiana Supreme Court transfer lists each week, generally on Friday afternoon.

Posted by Marcia Oddi on Friday, April 29, 2005
Posted to About the Indiana Law Blog

Law - Rock, Paper, Scissors wins big for those who prepare

The NY Times today has a really interesting story about how a Japanese company selected between two auction houses -- Christie's and Sotherby's -- re who "should sell the company's art collection, which is worth more than $20 million." Some quotes:

[Takashi Hashiyama, president of Maspro Denkoh Corporation, an electronics company based outside of Nagoya, Japan] resorted to an ancient method of decision-making that has been time-tested on playgrounds around the world: rock breaks scissors, scissors cuts paper, paper smothers rock.

In Japan, resorting to such games of chance is not unusual. "I sometimes use such methods when I cannot make a decision," Mr. Hashiyama said in a telephone interview. "As both companies were equally good and I just could not choose one, I asked them to please decide between themselves and suggested to use such methods as rock, paper, scissors."

Officials from the Tokyo offices of the two auction houses were informed of Mr. Hashiyama's request on a Thursday afternoon in late January.

They were told they had until a meeting on Monday to choose a weapon. The right choice could mean several million dollars in profits from the fees the auction house charges buyers (usually 20 percent for the first $200,000 of the final price and 12 percent above that). * * *

"The client was very serious about this," said Jonathan Rendell, a deputy chairman of Christie's in America who was involved with the transaction. "So we were very serious about it, too."

Kanae Ishibashi, the president of Christie's in Japan, declined to discuss her preparations for the meeting. But her colleagues in New York said she spent the weekend researching the psychology of the game online and talking to friends, including Nicholas Maclean, the international director of Christie's Impressionist and modern art department.

Mr. Maclean's 11-year-old twins, Flora and Alice, turned out to be the experts Ms. Ishibashi was looking for. They play the game at school, Alice said, "practically every day."

"Everybody knows you always start with scissors," she added. "Rock is way too obvious, and scissors beats paper." Flora piped in. "Since they were beginners, scissors was definitely the safest," she said, adding that if the other side were also to choose scissors and another round was required, the correct play would be to stick to scissors - because, as Alice explained, "Everybody expects you to choose rock."

Sotheby's took a different tack. "There was some discussion," said Blake Koh, an expert in Impressionist and modern art at Sotheby's in Los Angeles who was involved in the negotiations with Maspro. "But this is a game of chance, so we didn't really give it that much thought. We had no strategy in mind." * * *

Two experts from each of the rival auction houses arrived at Maspro's Tokyo offices, where they were shown to a conference room with a very long table and asked to sit facing one another, Mr. Rendell said. Each side's experts had an accountant from Maspro sitting with them.

Instead of the usual method of playing the game with the hands, the teams were given a form explaining the rules. They were then asked to write one word in Japanese - rock, paper or scissors - on the paper.

After each house had entered its decision, a Maspro manager looked at the choices. Christie's was the [contract] winner: scissors beat paper.

Posted by Marcia Oddi on Friday, April 29, 2005
Posted to General Law Related

Ind. Law - Fate of subdivision turns on 1935 deed

"Fate of subdivision turns on 1935 deed: Lawsuit filed over New Albany land" is the headline to a story today in the Louisville Courier Journal reported by Ben Zion Herschberg. Some quotes:

The future of a low-cost subdivision started on Linden Street in New Albany hinges on whether language in the 1935 deed for the property remains in force.

At issue is whether the land must remain a public park -- as stipulated in the deed transferring the tract to the city -- or whether a state law has superseded that requirement.

A decision in the case could establish an important statewide legal precedent, lawyers said, and could determine whether the Linden Meadows subdivision is completed. * * *

The arguments have been going on for more than a year -- since the New Albany Plan Commission approved plans for the $65 million expansion of Floyd Memorial Hospital. The approval was contingent, in part, on saving most of the houses that would have to be demolished or moved to make way for the hospital's new wing.

Initially, city officials wanted to move some of the houses to the Valley View Court neighborhood just a few blocks west of the hospital. But that idea was defeated by strong neighborhood opposition and a vote of the New Albany Housing Authority Board, which owns the Valley View site.

The city and community housing organization officials agreed to use McLean Field, on Linden Street, to initially store the houses moved because of the Floyd Memorial expansion. Housing organization officials then asked city planning agencies to approve a 23-lot subdivision on the site, and 19 houses have been relocated there. * * *

A group of residents filed suit to stop the subdivision, saying language in the 1935 deed transferring the land to New Albany requires it to be used as a public park and golf course. The deed says the land, if it's ever used for something other than a public park, reverts to Fawcett heirs.

In yesterday's hearing on the lawsuit, Mull argued that a 1993 law clearly says language requiring land to revert to a seller or a seller's heirs if deed requirements are violated lapses after 30 years.

While there has been no case testing that statute, Mull said, decisions in other states and on similar issues in Indiana make it clear that a public interest can outweigh a property owner's right to impose such long-term requirements in a deed.

David Lewis, the lawyer for residents opposed to Linden Meadows, said the 1993 law is unconstitutional because it overturns the 1935 deed, which was a contract between Fawcett and New Albany.

The U.S. and Indiana constitutions say contracts can't be overturned retroactively by laws enacted after the contracts went into effect, Lewis argued.

All this sounded vaguely familiar, so I checked, and sure enough, here is a July 14, 2004 ILB entry on the issue, titled "Question in New Albany about a 1935 deed."

Posted by Marcia Oddi on Friday, April 29, 2005
Posted to Indiana Law

Ind. Law - More on Governor's first veto

As reported here first yesterday afternoon, Gov. Daniels vetoed HEA 1224, which: "Establishes the aerospace and aeronautics initiative to be administered by the Indiana economic development corporation." Stories today include this story from Niki Kelly of the Fort Wayne Journal Gazette , headlined "Daniels vetoes 1st bill, surprising lawmakers." Some quotes:

Lawmakers involved in the bill seemed surprised by the veto.

Rep. Eric Koch, R-Bedford, said the bill passed both chambers unanimously and was a fairly simple bill. He noted that it was supported by the Indiana Chamber of Commerce and several aviation groups.

“I was surprised. They never approached us before,” said Sen. David Ford, R-Hartford City – the Senate sponsor of the bill. “There was nothing controversial as far as I could tell.”

He said the aerospace industry is starting to move again and “we need to capitalize on that.” He also hopes Daniels received that message even with the veto.

Lawmakers can override a veto with only a constitutional majority of 51 votes in the House and 26 votes in the Senate. In many other states, a two-thirds majority is needed.

It was unclear whether leaders in the House and Senate would call for an override. Lawmakers have tentatively agreed to meet June 8 to deal with any technical issues remaining from the session, including vetoes.

In addition to the veto, Daniels chose not to sign Senate Bill 512, which dealt with annexation issues for several specific communities around the state. It still becomes law without a signature.

Sen. Jeff Drozda, R-Westfield, was surprised to hear Daniels did not sign his legislation, saying he had “no discussion whatsoever from the governor’s office.”

The House sponsor, Rep. Matt Whetstone, R-Brownsburg, said Daniels had concerns about whether the bill was considered unconstitutional special legislation because it was tailored specifically to a number of cities and towns.

“Frankly if I were the governor I would have done the same thing,” Whetstone said.

Also, this story by Kevin Corcoran of the Indianapolis Star, headlined "Veto lets new entity set agenda: Legislative proposal would have required economic development panel to take action."

Posted by Marcia Oddi on Friday, April 29, 2005
Posted to Indiana Law

Thursday, April 28, 2005

Ind. Gov't. - Governor to replace IURC Chair

Via a press release issued yesterday by the Governor's office:

INDIANAPOLIS (April 27, 2005) -- Governor Daniels today named his appointees to the Indiana Utility Regulatory Commission (IURC) Nominating Committee. The committee will review and recommend candidates to fill the vacancy on the IURC created by the expiration of Chairman William McCarty’s term.

Michael R. Sample, Jesse L. Moore and Dennis Raetz were named to the committee, Sample, who will chair the group, serves as the executive director of the Hoosier Voices for I-69 Coalition. Moore is the manager of supplier diversity development at Purdue University, and Raetz is the associate director of athletics at Indiana State University.

Legislative leadership will name the other four members of the Nominating Committee, after which the committee will immediately begin its work.

[Readers may recall that State Senator Vi Simpson, spouse of Chairman McCarty, ran unsuccessfully for the Democratic nomination for Governor last year.]

Posted by Marcia Oddi on Thursday, April 28, 2005
Posted to Indiana Government

Environment - More on "no more stringent" memo

In my post yesterday evening ("No more stringent: now you see it, now you don't") based on the South Bend Tribune story, I said I hoped to get a copy of the Wolkins/Skillman "memorandum of understanding" so that I could make it available online. The Tribune's reporter told me he got his copy from the Governor's office, so I sent earlier today an email to the Governor's press secretary requesting a copy. I haven't heard back yet. If anyone else has access to a copy of this document they can share, please let me know.

Posted by Marcia Oddi on Thursday, April 28, 2005
Posted to Environment

Courts - Atlanta Georgia Courthouse to Review Security, Indiana company involved

The Washington Post reports today:

ATLANTA -- Judges at the courthouse where three people were shot to death last month have ordered a security review.

The contract for the Fulton County Courthouse audit was finalized Wednesday with the National Center for State Courts, a Virginia-based nonprofit group founded by former U.S. Supreme Court Chief Justice Warren Burger. The Indiana-based Public Agency Training Council will work with the center.

Posted by Marcia Oddi on Thursday, April 28, 2005
Posted to Indiana Courts

Ind. Law - Governor vetoes aerospace bill

Governor Daniels has issued his first veto message, vetoing HEA 1224, re an aerospace and aeronautics initiative: "Establishes the aerospace and aeronautics initiative to be administered by the Indiana economic development corporation."

The governor's veto message is available here.

Posted by Marcia Oddi on Thursday, April 28, 2005
Posted to Indiana Law

Ind. Decisions - Court of Appeals posts four today

William R. Dixon v. State of Indiana (4/28/05 IndCtApp) [Criminal Law & Procedure]


Abdinasir Abdirizak v. Review Board of Indiana
(4/28/05 IndCtApp) [Unemployment Compensation]
Barteau, Senior Judge

* * * Abdirizak presents two issues for our review, one of which is dispositive: whether the Review Board erred by affirming the administrative law judge’s (“ALJ”) decision denying Abdirizak unemployment benefits where Abdirizak claimed he never received notice of the hearing. * * *

There are two facets of due process at work in this case. The first is Abdirizak’s opportunity to be heard on his lack of notice. See Carter, 526 N.E.2d at 719. Abdirizak has not had an opportunity to present evidence on the notice issue because his Application for Leave to Introduce Additional Evidence to Review Board was denied without hearing. If Abdirizak is able to show that he did not receive notice of the hearing, then he was not afforded an opportunity to be heard and, thus, he was not afforded due process on his underlying substantive claim. This brings us to the second facet of due process with which we are concerned: Abdirizak’s right to be heard on the underlying substantive claim. See id. Therefore, given the circumstances, an evidentiary hearing on Abdirizak’s claim of inadequate notice is necessary in order to determine whether the requirements of due process have been met in this case.

CONCLUSION. Based upon the foregoing discussion and authorities, we conclude that the Review Board erred by affirming the administrative law judge’s (“ALJ”) decision denying Abdirizak unemployment benefits where Abdirizak claimed he never received notice of the hearing. Reversed and remanded to the Review Board for proceedings consistent with this opinion.
NAJAM, J., and VAIDIK, J., concur


J.D. v. State of Indiana
(4/28/05 IndCtApp) [Criminal Law & Procedure]

Charles Daugherty v. Dearborn Co., Indiana, et al (3/30/05 IndCtApp) [Tort Claims Act]
[Initially NFP]
Hoffman, Senior Judge

* * * Therefore, the requirement that the notice be given within the 180-day period is strictly construed. Our courts have held, in construing prior versions of the ITCA statutes, that the notice statute is to be strictly construed as to giving timely notice to the proper officers, but liberally construed as to whether the notice is sufficiently definite as to time, place, nature, etc. of the injury. See Burggrabe v. Board of Public Works of City of Evansville, 469 N.E.2d 1233, 1235 (Ind. Ct. App. 1984). Thus, a substantial compliance analysis was not necessary. The trial court did not err by entering an order granting summary judgment in favor of the County. Daugherty’s potential claim was barred as a matter of law by his failure to give notice within 180 days of the occurrence. There was no question of fact regarding that issue to survive the County’s motion for summary judgment. Affirmed.
VAIDIK, J., and CRONE, J., concur

Posted by Marcia Oddi on Thursday, April 28, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts two today

BROOKS, BENJAMIN v. UNIV WI REGENTS (WD Wis.) [16 pp.]

USA v. SUTTON, BYRON (ND Ill.) [7 pp.]

Posted by Marcia Oddi on Thursday, April 28, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Law - ICLU plans suit to derail voter-ID law

The Fort Wayne Journal Gazette is reporting today, in a story headlined "ICLU plans suit to derail voter-ID law," that:

The Indiana Civil Liberties Union plans to challenge a new law requiring all Indiana residents to show a government- issued picture ID before casting a vote in an election.

The ICLU plans to file a lawsuit opposing the law on behalf of senior citizens, homeless people and low-income families, Director Fran Quigley said Wednesday.

“This requirement is likely to prevent some people from voting,” Quigley said. “This is a fundamental constitutional right and to put a barrier in the way is simply not called for.”

The law would become effective July 1, but Quigley said his organization plans to ask a court to stop it from becoming active until the lawsuit is resolved. * * *

The bipartisan Allen County Election Board also opposes the law. Backers of Senate Bill 483, however, say it will put a stop to voter fraud, but Quigley said there has been no evidence to show there is a genuine voter fraud problem.

Five other states require a photo ID but also accept other forms of ID, such as passports or affidavits.

Under the new law, those failing to provide an appropriate ID may cast a provisional ballot, but that ballot can be thrown out if the voter does not return to the election board within one week to show proper ID.

[More] Columnist Andrea Neal writes in the Indianapolis Star, in a column headlined "Expect voter ID to end up in court with 2 other laws," that SEA 332 (flags in schools) and SEA 76 (abortion - ultrasound imaging) may also end up subject to court review.

Posted by Marcia Oddi on Thursday, April 28, 2005
Posted to Indiana Law

Wednesday, April 27, 2005

Environment - [Updated] No more stringent: now you see it, now you don't

Martin DeAgostino of the South Bend Tribune has a whale of a story today, headlined: "Stalled in committee, environmental bill resurfaces: Move to bar tougher pollution rules than feds' emerges as Daniels' policy statement." Some quotes:

INDIANAPOLIS -- In a twist on "now you see it, now you don't," a controversial environmental bill that disappeared last week has resurfaced as a policy statement by the Daniels administration.

The change means that Gov. Mitch Daniels will observe the spirit of the bill even though it stalled after colliding with Senate Energy and Environmental Affairs Chairwoman Beverly Gard, R-Greenfield.

The bill barred Indiana's three pollution control boards from adopting stricter environmental rules than the federal government, regardless of perceived local needs. * * *

But Gard may have been outflanked by the administration and her House counterpart, Rep. David Wolkins, R-Winona Lake.

According to a memorandum of understanding between Wolkins and Lt. Gov. Becky Skillman, Daniels will not sign any proposed rules that are more stringent than federal rules "until this issue is resolved."

The memo, dated Monday, also imposes a new test for those exceptions authorized by current law, namely "a positive cost-benefit analysis and demonstrated benefits to the health of Hoosiers."

The memo does not define "positive cost-benefit analysis," but Wolkins said Tuesday that proposed rules must generate more economic or health benefits than they cost to implement.

If strictly applied, Wolkins acknowledged, the new test could block rules that cost even marginally more than their benefits, including prevention of cancer or birth defects.

But he said the standard would counter a prevailing mindset among regulators and environmentalists that ignores the economic costs of regulations. "Some of those regulations can have an unbelievable cost to them," he said. * * *

A spokeswoman for the Indiana Department of Environmental Management said the agency regards the Wolkins-Skillman memo as working policy that sets a reasonable standard for environmental rule-making.

"We have to justify what we're asking for when we ask for a more stringent rule," said Sandra Flum, IDEM communications and legislative director.

But Flum said IDEM will likely seek to clarify some of the memo's points with Wolkins, since the agency did not help draft it.

According to the memo, Skillman will meet jointly this year with Wolkins, IDEM and the new Department of Agriculture "to resolve the policy conflict."

See this ILB entry from Tuesday quoting from reports that the "no more stringent" language had been removed from the SB 298 because Senator Gard, an advisor to the conferees, refused to sign. According to DeAgostino's story today, Lt. Gov. Skillman and Representative Wolkins entered into their "memorandum of understanding" on Monday.

I hope to obtain a copy of the memo that I can post here. This appears to me to be very unusual - an agreement between one member of the General Assembly and the Lt. Gov., presumably acting on behalf of the Governor, whereby the Governor agrees to implement the legislator's failed legislation.* He will do so by rejecting any proposed rules that do not conform to tests set out in the memorandum.

This memorandum clearly is intended to have the force and effect of law, although it did not pass the General Assembly. It would effectively (through a side-agreement with no legitimacy) amend the existing law governing the rulemaking process by adding what is described in the story as "a new test" that a proposed rule must meet before the Governor will approve it -- again, a test drafted by a legislator, but which failed to pass the General Assembly.
__________
*Along with, if I read this correctly, a public slap-in-the-face to a longtime, loyal member of his own party who is highly respected by both the regulated community and environmentalists.

[Updated 5/4/05] The Fort Wayne Journal Gazette has an editorial today on this issue:

Sen. Beverly Gard, R-Greenfield, was right to act tenaciously to kill proposed legislation that would have barred the Indiana Department of Environmental Management from enacting any environmental rules that are stricter than federal law. And the apparent back-door effort from the Daniels administration to enact the dead legislation administratively shows a disregard for democratic principles and for the welfare of Hoosiers.

Gard, a legislator with a solid background in biochemistry, is well versed in environmental issues and understands that federal laws should be considered a minimum. The state must have the power and flexibility to address local environmental problems in the best interests of a specific community. She says the proposed legislation, supported by Rep. David Wolkins, R-Winona Lake, was poorly crafted and would have tied the hands of IDEM to enact rules specific to the environmental concerns of Indiana.

A memo outlining an agreement for a rulemaking policy by the Daniels’ administration from Wolkins to Lt. Gov. Becky Skillman is cause for concern. The memo indicates that the governor would simply refuse to sign proposed rules that are stricter than federal standards. The result of the memo, if it is a reflection of administration policy, is a rare agreement between it and one legislator to circumvent the legislative process and enact legislation that failed in the General Assembly. It would create an administrative policy that is contrary to the will of the people elected to represent the public’s interests.

Indiana environmental rules that exceed federal standards are rare. Emission limits on lead smelters and rules regulating styrene emissions related to RV manufacturing in Elkhart County are two notable exceptions. If the bill had moved forward, the rules protecting residents from styrene emissions could have been dismantled – making the lovely gift of RV One to the people of Indiana look even more suspicious.

Gard says she has not heard anything official from the Daniels administration, and until she does, she is willing to give the administration the benefit of the doubt. She is more inclined to think of the memo as an effort to end a stalemate rather than a slap in her face. She plans to take part in meetings this summer to discuss environmental issues. But she also says she can’t picture herself ever agreeing to sign a bill that would take away the state’s authority to create useful environmental laws in the best interest of Hoosiers. “I don’t feel any less strongly than I did two weeks ago,” Gard says.

The bottom line: The Governor appoints the people who run IDEM. The Governor appoints the members of the environmental boards. I cannot remember (and I have been following Indiana environmental rulemaking since IDEM was created in 1986) an environmental rule being submitted to the Governor that he has been forced to disapprove. They are halted long before then, or never initiated. I can remember one apparent slip-up where an undesired rule proposal nearly made it to the Governor (Gov. Bayh); in that case the rule (on industrial pre-treatment) that had been final adopted by the water board simply was never submitted by IDEM to the Governor for his action.

In other words, the memorandum of understanding between this administration and Rep. Wolkins was completely unnecessary. Governor Daniels' environmental appointees are not going to submit to him for his approval rule proposals that deviate from his administration's stated goals.

So what was its purpose?

[Re my efforts to obtain a copy of the memorandum: the South Bend Tribune reporter who wrote the original story told me he obtained his copy from the Governor's office: "I obtained my copy from the governor's office, which would likely make one available to you, too." However, I have received no response at all to my request via email to the Governor's press secretary.]

Posted by Marcia Oddi on Wednesday, April 27, 2005
Posted to Environment

Ind. Decisions - Court of Appeals posts four today

KLLM, Inc. and Keith James Pierce v. LaCrecia E. Legg, as Personal Representative of the Estate of Mark S. Hanna, and Laura Brewer (4/27/05 IndCtApp) [Guest Statute]
Robb, Judge

Mark Hanna died as a result of injuries he sustained when Keith Pierce struck Hanna while Hanna was assisting Pierce in backing up a semi tractor-trailer combination that Pierce was driving on behalf of KLLM, Inc. Pierce and KLLM, Inc. (collectively, “KLLM”) filed a declaratory judgment action to determine whether Indiana’s Guest Statute, Indiana Code section 34-30-11-1, barred any claim that Hanna’s estate, by LaCrecia Legg as the estate’s personal representative, and Laura Brewer, Hanna’s mother, might have against KLLM. The parties filed cross motions for summary judgment, and Legg and Brewer (collectively, “Legg”) filed a Trial Rule 12(B)(6) motion to dismiss. The trial court denied all motions and subsequently entered final judgment in favor of Legg, finding that Indiana’s Guest Statute did not apply to the case at hand. KLLM now appeals. * * *

The trial court correctly concluded that Hanna was a hitchhiker under Indiana’s Guest Statute at the time of his death but erred in finding that Hanna was not “in or upon” the vehicle. Therefore, we reverse the trial court’s denial of KLLM’s motion for summary judgment and remand this cause to the trial court for further proceedings consistent with this opinion. Also, because we hold that the declaratory judgment action was appropriate, the trial court did not abuse its discretion in allowing the declaratory action to proceed. Thus, we affirm the trial court’s denial of Legg’s motion to dismiss.
Affirmed in part and reversed and remanded in part.
RILEY, J., and CRONE, J., concur


Northern Indiana Public Service Company v. Indiana Office of Utility Consumer Counselor and NIPSCO Industrial Group
(4/27/05 IndCtApp) [Utility Law]
Baker, Judge
Appellant-petitioner Northern Indiana Public Service Company (NIPSCO) appeals a ruling from the Indiana Utility Regulatory Commission (Commission) claiming that an order issued by that agency disallowing NIPSCO’s proposed use of a deferred accounting method for new costs it will incur to deliver electricity to retail customers was not supported by the evidence and is contrary to law. Specifically, NIPSCO claims that the Commission erred in determining that the proposed accounting method violated a settlement agreement that NIPSCO had negotiated with several of the parties to this appeal, including the Office of Utility Consumer Counselor (OUCC), and the NIPSCO Industrial Group. Concluding that the Commission properly denied NIPSCO’s request to use a deferred accounting method with respect to its new costs, we affirm. * * *
KIRSCH, C.J., and BARNES, J., concur
In the Matter of C.C. (4/27/05 IndCtApp) [Juvenile Law]

David Jeffrey Lee v. State of Indiana (4/27/05 IndCtApp) [Criminal Law & Procedure]
MATHIAS, Judge

David Lee’s (“Lee”) Motion to Suppress was denied in the Superior Court of Lake County. Lee appeals, raising the following two restated issues for review: [1] Whether the Indiana Constitution permitted the police, without first obtaining a search warrant, to view videotapes that were previously viewed by Lee’s fiancée; and,[2] Whether the Fourth Amendment permitted the police, without first obtaining a search warrant, to view videotapes that were not previously viewed by Lee’s fiancée.

Concluding the police were only permitted to view the videotapes that had already been viewed by Lee’s fiancée, we affirm in part, reverse in part, and remand.
BAILEY, J., and SULLIVAN, J., concur

Edward Jackson v. State of Indiana (4/27/05 IndCtApp) [Criminal Law & Procedure]

Posted by Marcia Oddi on Wednesday, April 27, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts four today

WALL, SHERRY v. CITY OF BROOKFIELD (ED Wis.) [4 pp.]

Before POSNER, ROVNER, and WILLIAMS, Circuit Judges. POSNER, Circuit Judge. This case bids fair to bring constitutional litigation into disrepute. The plaintiff, a resident of a Milwaukee suburb, owns two dogs, one a 95-pound Doberman Pinscher that is constantly getting loose and frightening the neighbors. The plaintiff received nine citations for violating the municipal ordinance that forbids people to let their dogs run wild. These citations cost her in fines and attorneys’ fees some $25,000. The next time the dog got out the local humane society picked it up and the town authorities told the society to hold on to the dog as a stray, though they knew it was not a stray—that it was the plaintiff’s notorious animal. She brought this suit under 42 U.S.C. § 1983, contending that the town had deprived her of her property without due process of law and seeking injunctive relief and damages. After detaining the dog for 60 days, the humane society returned it to her, so her suit became one for the loss of 60 days of animal companionship.

If ever the resolution of a dispute belonged at the local level of government, it is this dispute over what to do about the plaintiff’s inability or, more likely, unwillingness to control her intimidating Doberman. It is impossible to discern a federal interest. There is no suggestion that the plaintiff belongs to a discriminated-against minority, that Wisconsin officialdom is irrationally hostile to dog owners, that Brookfield intended to sell the Doberman in order to retire the town debt, that the plaintiff is a political opponent of the town’s mayor, that leash laws challenge values embedded in the federal Constitution or federal laws, or that the detention of the dog was intended as retaliation against the plaintiff for asserting her federal rights. This is a neighborhood squabble over a dog, a squabble properly to be resolved at the neighborhood or local level rather than by federal judges sitting in Milwaukee and Chicago. Such hotly litigated issues as whether a neighbor’s two-pound dog the scruff of whose tiny neck the Doberman clamped its jaws on was a puppy that the Doberman was playing sweetly with or a minute adult that the Doberman was terrifying do not engage the expertise of federal judges. * * *

This is nuisance litigation that the federal judiciary does not need. So we affirm the judgment but at the same time issue the plaintiff an order to show cause why she should not be sanctioned for making a frivolous argument in a meritless case.

NESE, LOUIS V v. JULIAN NORDIC CO (ND Ill.) [10 pp.]

Before RIPPLE, EVANS, and WILLIAMS, Circuit Judges. EVANS, Circuit Judge. Louis Nese claims that his employer violated the Americans with Disabilities Act, 42 U.S.C. § 12101 (ADA), by reducing his wages and then terminating him because of its incorrect perception that he had a disability. The district court granted summary judgment for the employer and Nese appeals. * * *

Nothing indicates a belief that the reason Nese’s work was not quite up to par was that he was disabled and unable to perform a broad range of jobs. For these reasons, the judgment of the district court is AFFIRMED.

U.S. BANK v. SULLIVAN-MOORE, MATTIE (ND Ill.) [10 pp.]

Before POSNER, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Fisher and Fisher, Attorneys at Law, P.C. earns its bread and butter representing mortgage companies and lending institutions in mortgage foreclosure cases, creditor bankruptcies, evictions, real estate closings, housing court, and housing related matters. By its own description, it is a high volume operation, receiving 10,000 to 12,000 cases each year, 4,000 to 5,000 of which are new foreclosure matters. The firm does not assign one attorney to handle a single case, but rather lawyers work on numerous files on a daily basis and several attorneys may work on any particular matter.

This approach to its caseload may have exacerbated the firm’s mishandling of a foreclosure action against Mattie Sullivan-Moore, who has since died. Working on behalf of U.S. Bank National Association, N.D., Fisher and Fisher handled the foreclosure of Sullivan-Moore’s home, located at 7744 South Carpenter Street, Chicago. The proceedings got off to a bad start, however, because the complaint misidentified Sullivan-Moore’s common address as 7742 South Carpenter instead of 7744 South Carpenter. As a result of this error, Sullivan-Moore never received proper notice of the proceedings before a judgment of foreclosure was entered, her property was sold, and she was evicted. Although sympathetic to the initial error, the district court believed Fisher and Fisher had ample opportunity to rectify the problem before Sullivan-Moore was evicted. The district court thus imposed sanctions against Fisher and Fisher, and it appeals, tending that the sanctions were improperly imposed. * * * Affirmed.

USA v. MCCARTER, TERRANCE (ND Ill.) [8 pp.]

Posted by Marcia Oddi on Wednesday, April 27, 2005
Posted to Ind. (7th Cir.) Decisions

Law/Biotech - More on "Stem Cell Guidelines Issued"

"Group of Scientists Drafts Rules on Ethics for Stem Cell Research" is the headline to this front-page story today in the NY Times. It begins:

Citing a lack of leadership by the federal government, the National Academy of Sciences proposed ethical guidelines yesterday for research with human embryonic stem cells.

Scientists have high hopes that research with those all-purpose cells, which develop into all the various tissues of the adult body, will lead to treatments for a wide variety of diseases by enabling them to grow new organs to replace damaged ones.

But because of religious objections - human embryos shortly after fertilization are destroyed to derive the cells - Congress has long restricted federal financing of such research; President Bush has allowed it to proceed, but only with designated cells. As a result, the government has not played its usual role of promoting novel research and devising regulations accepted by all players.

The academy, a self-elected group of scientists that advises the government, recommends setting up a system of local and national committees for reviewing stem cell research. It also tackles a new set of ethical problems raised by creating organisms composed of cells from two different species, and in this case animals that include human cells.

The academy hopes its proposals, which are nonbinding, will be accepted in the private and public sectors, particularly in states like California that are creating ambitious stem cell programs. Its report is also likely to influence the debate in Congress, where some lawmakers wish to allow new human stem cell lines to be derived and other lawmakers are seeking tighter restrictions.

Scroll down for an earlier entry today on this same report.

Posted by Marcia Oddi on Wednesday, April 27, 2005
Posted to Biotech | Indiana Law

About this blog - Thanks for the notes and thoughts - they are much appreciated

This is not my last post, that will be the end of this month. But I did want to say thanks for the notes and the thoughts in response to my announcement last week:

Mary Davidsen [Chief ELJ, OEA] - "Marcia, thank you so much for your years of service to the Blog.... I will miss your Blog, but wish you the best!"

Les A. Meade, Judge, Tippecanoe Superior Court No. 5 - "I am very sorry to hear of your decision to end your work on the Indiana Law Blog. It has become a source of information that I have regularly checked several times each day, and I will surely miss your work. It is a constant amazement to me that a practicing attorney could find the time and demonstrate the dedication that you have demonstrated over the last three years to maintain a blog and keep the rest of us up to date on legal developments around the state. It is a tribute to your dedication and your service to others that you have done this. I want you to know how very much I have appreciated all of the time you have spent and all of the work you have done. Your work has been a great resource to me and to the many attorneys, judges, and other people that I have referred to your blog."

Guinn Doyle [B&T] - "Sorry to learn that you are discontinuing your BLOG. I, for one, really appreciate you effort."

Allen Taylor, Digital Integrity Solutions, LLC - "I'm sorry to hear you're ceasing the daily updating of the Indiana Law Blog but as a former blogger I fully understand. I started following your blog when I was Vice President & CIO for Dura Builders and found it a 'must read' at the start of my business day -- a habit which has continued to this day."

Marty Lucas, North Judson attorney and fellow blogger (BigEastern.com) - "Say it ain't so... I'll definitely miss it, and no doubt be less well informed."

Jack Simmerman - "Thanks for your work on the blogs---I am not in anyway directly involved in the legal profession but have accessed your site 1-4 times per day."

Brrian Powers - I noticed on your Blog today that you plan to cease updating the blog at the end of the month. I was wondering what your plans were for the blog? I am a 3rd year law student at IU-Indy - and I read your blog quite frequently. Just curious if you plan to keep the blog and the archives online ..."

Kevin O’Keefe, President, LexBlog, Inc. - "Sorry to see you are going to stop publishing the blog. You have been a shining example of a good lawyer blog for a long time. I hope you have found the experience rewarding and joy and rewards in the time you will now have by not publishing the blog."

Bob Caylor - "Of course, I should have sent you a note of appreciation sooner, but at least let me get in under the wire. I've been checking in regularly on ILB for months, and I admire the breadth of your intertests and reading, as well as the judgment you exercise in highlighting developments in law, environment and business. It's been helpful. I'll be sorry to see the blog fade out. I hope that it at least scared up some contacts that will help you in business."

Several fellow Indiana bloggers have posted notes on their sites:

Michael Ausbrook, Bloomington attorney, has this in his blog, INCourts. Some quotes: "I am shocked and saddened to read in this post that Marcia Oddi is shutting down the Indiana Law Blog in something like a week. ... Any chance, Marcia, you're going to say, 'Just kidding'? If not, thanks for all the help keeping track. And just for all the help."

E. Thomas Kemp, Richmond attorney, had this in his blog, Kemplog. A quote: "Marcia has run a blog of high quality, high standards, and consistent production. I think her blog is one of the best examples of what a legal blog can be, and has been a great resource for the Indiana legal community."

Ed Feigenbaum, INGroup, made an unsolicited plea for a "white knight" in his blog, Indiana Daily Insight, that began: "We were disappointed to learn last week that the Indiana Law Blog is planning to call it quits after several years of providing unparalleled pointers to key items dealing with Indiana law, state legislative matters, and environmental policy -- and informed commentary by veteran attorney Marcia Oddi on some of these matters as well. ..."

Thanks Ed. And thanks to each of you, for your unexpected, but much appreciated, thoughts.

[And I do hope some of you readers will think of me when your firm or business is looking for legal and technical editing and publishing, specialized databases and web solutions, and for management of all manner of "special projects."]

Posted by Marcia Oddi on Wednesday, April 27, 2005
Posted to About the Indiana Law Blog

Law/Biotech - Stem Cell Guidelines Issued

The Washington Post reports today:

Forging into a politically and ethically contentious regulatory void, the National Academies released a detailed set of guidelines yesterday aimed at all U.S. researchers who perform experiments with human embryonic stem cells.

The 131-page report from the nation's premier independent science advisory board contains the first comprehensive -- albeit voluntary -- ethics rules to emerge from years of jostling by scientists, ethicists, patient advocates and others with stakes in the research. * * *

The guidelines set standards for procuring stem cells. Most surprisingly, they call for a ban on paying women for their eggs, which until now have been worth thousands of dollars to some donors. The rules also spell out much of what scientists should and should not do with embryos and stem cells once they get them -- setting limits, for example, on the types of animal-human hybrids that ought to be produced.

The Academies, chartered by Congress to advise the nation, have repeatedly expressed support for stem cell research, including studies in which human embryos are cloned and then destroyed to provide stem cells. The new guidelines, created without government funding, do not rehash the old arguments for and against such research but go the next step to encourage "responsible practices," said Bruce Alberts, president of the National Academy of Sciences, a branch of the Academies.

He and others expressed the hope that the guidelines would quickly become the gold standard that universities, research institutes, privately funded scientists and states would follow in the absence of federal rules.

If that happens -- as many scientists yesterday said is likely -- it could greatly accelerate the pace of research by facilitating collaborations among scientists around the country who have been working under varying rules. The guidelines are also expected to help researchers gain faster Food and Drug Administration approval to try their emerging therapies in patients.

The entire report, "Guidelines for Human Embryonic Stem Research," may be read online here.

Meanwhile, Senate Bill 268 is in conference committee. According to the Action List, one conference report was submitted, then withdrawn. For background, see this Jan. 14th ILB entry and this one from Jan. 17th.

Posted by Marcia Oddi on Wednesday, April 27, 2005
Posted to Biotech | Indiana Law

Courts - In Problem-Solving Court, Judges Turn Therapist

The NY Times had an interesting article yesterday headlined "In Problem-Solving Court, Judges Turn Therapist." Some quotes:

The interventionist approach - known in New York as problem-solving courts - dates to 1989, when a judge in Miami decided to try to order treatment for drug addicts. Soon after, New York developed the Midtown Community Court to deal with quality-of-life crimes in Times Square. At that court, prostitutes, for example, are ordered to perform community service and can receive training for a new career.

In recent years, the problem-solving idea has spread across the country, according to studies done for the Department of Justice, which has spent tens of millions of dollars on these experimental programs. New York alone has received almost $17 million since 2000, and the state's chief judge, Judith S. Kaye, says the efforts are worth it - for the people accused and for the court system, which handles 4 million cases a year.

"We're seeing the same people again and again and again," Judge Kaye said, because of factors like substance abuse and family dysfunction. With problem-solving courts, she added, "we can use the time that person is before us more constructively, for recovery and rehabilitation."

To an outsider, a "problem-solving court" might not look very different from a traditional one. These courts exist, for the most part, in regular courthouses, and there are judges in robes and court officers in uniform.

But there are significant differences. The judges often have an unusual amount of information about the people who appear before them. These people, who are often called clients, rather than defendants, can talk directly to the judges, rather than communicating through lawyers.

And the judges monitor these defendants for months, even years, using a system of rewards and punishments, which can include jail time. Judges also receive training in their court's specialty and may have a psychologist on the staff.

Drug courts generally have a positive track record. A 2003 study of six New York drug courts found that participants were almost a third less likely to be rearrested than similar defendants in the regular criminal courts.

But the results for newer courts are unclear. For example, a specialized court in Harlem for nonviolent parolees is supposed to help them by providing treatment programs and services like job training.

But a 2003 study found that participants in the court program still too often wound up back in jail. * * *

Of all the problem-solving experiments, courts that specialize in domestic violence are probably the most controversial. Advocates for victims tend to think they are too lenient, saying that batterers deserve jail time, not anger-management treatment.

But public defenders have darkly dubbed these courts "victims' courts," contending that they are meant to protect the person - usually a woman - bringing charges rather than determining the guilt or innocence of the person being charged with the crime.

Posted by Marcia Oddi on Wednesday, April 27, 2005
Posted to Indiana Courts

Ind. Decisions - ID thief to get new sentence, court says

The Indianapolis Star's Michelle McNeil, who broke the original Scott/PERF story several years back, has a story today on the 7th Circuit's ruling earlier this week on Scott's appeal of his sentence. (See also this ILB entry from yesterday.) Some quotes from the Star story:

Walter Kevin Scott, the convicted identity thief who once held a top job at the state's $10 billion Public Employees' Retirement Fund, will be sentenced again for his crimes, according to a federal appeals court ruling.

Scott, 38, was sentenced in December 2003 to 10 years in prison after pleading guilty to 23 felonies, including bank fraud, money laundering and misusing a Social Security number. Scott, who served as the fund's chief benefits officer from November 2001 to August 2002, was not found guilty of committing any crimes while working at the fund.

U.S. District Judge Sarah Evans Barker gave him a more severe penalty for several reasons -- including her finding that he obstructed justice while awaiting sentencing. The federal appeals court, in a decision Monday, disagreed with that one finding and ordered a new sentencing, which could mean a shorter prison stay.

The appeals court, however, upheld Scott's conviction, and $1.3 million in restitution he must pay to the pension fund and another Indiana company.

Posted by Marcia Oddi on Wednesday, April 27, 2005
Posted to Ind. (7th Cir.) Decisions | Indiana Government

Tuesday, April 26, 2005

Ind. Decisions - Court of Appeals posts nine today; Tax Court posts one

Claudette Cain v. Roger Griffin, et al (4/26/05 IndCtApp) [Insurance]
Baker, Judge

Appellant-plaintiff Claudette Cain appeals the trial court’s grant of summary judgment in favor of appellees-defendants Roger and Lucy Griffin (collectively, the Griffins) and Auto-Owners Insurance (Auto-Owners), claiming that a genuine issue of material fact existed as to whether Auto-Owners—who was the Griffins’ insurance company—breached a duty to deal with her in good faith. Concluding that Auto-Owners was not under a duty to deal with Cain in good faith because she was not its insured and did not occupy the position of a third party beneficiary under that insurance agreement, we affirm the judgment of the trial court. * * *

FRIEDLANDER, J., concurs.
SHARPNACK, J., dissents with opinion. I respectfully dissent from the majority’s conclusion that Cain is not a third-party beneficiary of the Griffins’ insurance policy with Auto-Owners. Although the majority concludes that Cain is not a third-party beneficiary, it offers little rationale for that conclusion. I believe that an analysis of relevant cases indicates that Cain is a third-party beneficiary. * * *

Michael Ankney v. State of Indiana (4/26/05 IndCtApp) [Criminal Law & Procedure]

Alan J. Zimmerman v. Edward & Opal McColley
(4/26/05 IndCtApp) [Contracts]
Najam, Judge
Alan J. Zimmerman, Special Administrator of the Estate of Jack W. Dulin, deceased, appeals from the trial court’s judgment in favor of Edward and Opal McColley on the McColleys’ Petition to Enforce Settlement. Zimmerman presents a single issue for our review, namely, whether the trial court erred when it concluded that an enforceable oral agreement existed between the parties. * * *

Based on the forgoing discussion, we conclude that the trial court’s determination that Auto-Owners and the McColleys entered into an enforceable oral contract to settle the McColleys’ claim for a lump sum of $115,000 is not clearly erroneous. Affirmed.
KIRSCH, C.J., and VAIDIK, J., concur.

In the Matter of M.M. (4/26/05 IndCtApp) [Involuntary Commitment]
Friedlander, Judge
M.M. appeals an order involuntarily committing her to a mental health facility as an inpatient. She presents the following restated issues for review: [1] Did the trial court improperly rely on hearsay testimony to support the involuntary commitment? [2] Was the involuntary commitment order supported by sufficient evidence? [3] Did the trial court improperly impose special conditions of commitment? * * *

The judgment of the trial court is affirmed in part and reversed in part with instructions to strike all special conditions from the order of commitment insofar as they apply to M.M.’s inpatient care and to strike the special condition prohibiting M.M. from consuming alcohol and drugs from the order of commitment altogether.
BAKER, J., and SHARPNACK, J., concur.


David K. Davidson v. Singbe Bailey
(4/26/05 IndCtApp) [Torts]
Friedlander, Judge
* * * It is undisputed that Davidson’s BAC was .248% shortly after the accident and that Thornberry had spent over three hours with Davidson immediately prior to the accident. Officer Branson testified that shortly after the collision, Davidson displayed signs of obvious intoxication, including slurred speech, odor of alcohol, and bloodshot eyes. It is also undisputed that Thornberry had training from a previous job to be aware that the exact behavior Davidson displayed signaled intoxication. Based on the foregoing, the evidence was clear and convincing that Thornberry permitted Davidson to drive her car with reckless disregard of the natural and probable consequences. The award of punitive damages was proper. Judgment affirmed.
SHARPNACK, J., and BAKER, J., concur.
Jerry W. Brown v. State of Indiana (4/26/05 IndCtApp) [Criminal Law & Procedure]

Raymond Hall v. State of Indiana (4/26/05 IndCtApp) [Criminal Law & Procedure]

Duke Henderson v. State of Indiana (4/26/05 IndCtApp) [Criminal Law & Procedure]

US Land v. US Surveyor (4/26/05 IndCtApp) [Trade Secrets]
Sharpnack, Judge

In this interlocutory appeal, U.S. Land Services, Inc. (“Land Services”), Allen Harding, and Stacey Wyber (collectively, “Defendants”) appeal the trial court’s grant of a preliminary injunction to U.S. Surveyor, Inc. (“Surveyor”). The Defendants raise two issues, which we reorder and restate as: [1] Whether the trial court’s finding that Surveyor’s customer, prospect, and surveyor lists are trade secrets under the Indiana Uniform Trade Secrets Act, Ind. Code § 24-2-3-1 to -8, is clearly erroneous; and [2] Whether the trial court’s preliminary injunction is overbroad. * * *

In summary, while the portion of the trial court’s injunction prohibiting the Defendants from contacting clients and surveyors found on Surveyor’s databases is not overbroad, the portion of the injunction prohibiting Land Services from operating a survey management and coordination business and Harding and Wyber from working for Land Services in such a business is overbroad. Accordingly, we reverse the portion of the preliminary injunction that enjoined Land Services from conducting or participating in any manner in the survey management and coordination business and the portion that prohibited Harding and Wyber from working for Land Services in the survey management and coordination business. However, we affirm the trial court’s injunction prohibiting Land Services, Harding, and Wyber from contacting Surveyor’s clients and surveyors included within Surveyor’s computer database as of Harding’s and Wyber’s termination of employment by Surveyor in or about April, 2003. See, e.g., Hydraulic Exch., 690 N.E.2d at 788 (holding that the injunction was overbroad).
For the foregoing reasons, we affirm the trial court’s grant of a preliminary injunction to Surveyor in part, reverse in part, and remand for proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
FRIEDLANDER, J. concurs with separate concurring opinion
BAKER, J. concurs in part and dissents in part with separate opinion

FRIEDLANDER, Judge, concurring. I agree with the majority in every respect, but write briefly to address the point raised by my colleague in dissent. We all agree the trial court was correct in concluding that under the Trade Secrets Act, Surveyor’s surveyor database is a trade secret that appellants should be preliminarily enjoined from using. We all also agree that the preliminary injunction was overbroad, at least with respect to its prohibition against Land Services operating a survey management and coordination business, and against Harding and Wyber working for Land Services while it conducts such business. The only point of disagreement is whether the customer database obtained from Surveyor’s is a trade secret, and therefore a proper subject of the preliminary injunction. I agree that it is. * * *

Baker, Judge, concurring in part and dissenting in part. * * * I must, however, part ways with the majority's decision to include Surveyor's customer database as a trade secret. * * * Also, that Harding and possibly Wyber disclosed customer database information to Land Services is of no concern absent a showing that the customer database constituted a trade secret, or a showing that the non-competition agreements should be upheld. Here, the trial court's preliminary injunction as to the customer database effectively prevented competition instead of protecting Surveyor's trade secrets. Therefore, I am compelled to concur in part and dissent.

David R. Webb Company, Inc. v. Indiana Dept. of State Revenue (4/25/05 IndTaxCt) [Gross Income Tax]
Fisher, Judge
The David R. Webb Company, Inc. (Webb) appeals the Indiana Department of State Revenue’s (Department) final determination assessing it with additional gross income tax liability for the years ending December 31, 1995, December 31, 1996, and December 31, 1997 (the years at issue). The matter, currently before the Court on the parties’ cross-motions for summary judgment, presents the following issue for review: whether the Department erred in finding that Webb’s sales to out-of-state purchasers were local transactions subject to Indiana’s gross income tax. * * *

The facts in this case reveal that the sales at issue are interstate transactions. Indeed, the overall interstate character of these transactions – the sale of veneer to customers located outside of Indiana, the transportation and delivery of the veneer to a destination outside Indiana, the inspection and acceptance of that veneer outside Indiana – outweigh the local activities. Accordingly, the Department erred in finding that the sales at issue were local transactions subject to Indiana’s gross income tax.

CONCLUSION. For the above stated reasons, the Court GRANTS summary judgment in favor of Webb and DENIES summary judgment to the Department.

Posted by Marcia Oddi on Tuesday, April 26, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts one today

USA v. BOWNES, MARVIS H. (SD Ill.) [6 pp]

Before POSNER, RIPPLE, and MANION, Circuit Judges.
POSNER, Circuit Judge. We have consolidated for argument and decision defendant Bownes’s appeals from his sentence and from other orders issued by the district court. The primary charge against him was mail fraud arising from a “land flipping” scheme whereby he would acquire homes in a poor area at low prices and resell them to poor people at high prices, financing the sales by obtaining inflated mortgage loans through the submission of false appraisals by crooked appraisers acting in concert with him. He was also charged with threatening a reporter who investigated the scheme. He pleaded guilty to the charges in accordance with a plea agreement (actually two agreements, but we can ignore that detail) and was sentenced to 210 months in prison and also ordered to pay almost $2.5 million in restitution. His appeals raise a number of issues, including whether he should be resentenced in the light of United States v. Booker, 125 S. Ct. 738 (2005). But we cannot reach that or any other issue if, as the government argues, the plea agreement, negotiated by Bownes’s lawyer, waived Bownes’s right of appeal.
[What follows is an important discussion of plea agreements by Judge Posner - must reading for the criminal bar.]

Posted by Marcia Oddi on Tuesday, April 26, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Ex-state official’s prison term set aside

Well, this is somewhat embassassing. I summarized this 7th Circuit ruling on the appeal of a decision by Judge Sarah Evans Barker yesterday, without realizing that the defendant-appellant Walter Kevin Scott was the Scott who had worked for the Indiana Public Employees' Retirement Fund. As reported in this AP story just posted on the Indianapolis Star website:

A federal appeals court set aside a former state pension fund official’s 10-year prison term on fraud-related charges and ordered a judge to reconsider the sentence.

Attorneys for Walter Kevin Scott argued that he was sentenced illegally because U.S. District Judge Sarah Evans Barker misinterpreted federal sentencing guidelines.

The 7th Circuit Court of Appeals in Chicago on Monday said it was unlikely that Scott would have received a lesser sentence since Barker had sentenced him at the upper range of penalties, but it ordered Barker to resentence him to remove any doubt.

Scott, 38, was sentenced in December 2003 to 10 years in prison and ordered to repay about $1.3 million on charges that he embezzled money while working for Cook Inc. of Bloomington and used another person’s Social Security number in applying for a job as chief benefits officer of the $10 billion Public Employees’ Retirement Fund.

Scott resigned from the pension fund position in 2002 after state officials learned he had used identity information of a person with a similar name to pass a criminal background check. He had a previous conviction in Ohio on charges of fraud and identity theft, authorities said.

Posted by Marcia Oddi on Tuesday, April 26, 2005
Posted to Ind. (7th Cir.) Decisions | Indiana Government

Ind. Gov't. - Bill creating agriculture department signed

An AP story by Rick Callahan published today in the Louisville Courier Journal reports:

Gov. Mitch Daniels signed into law yesterday a bill creating Indiana's first cabinet-level agriculture department, an agency he predicted would both spur the state's economic revival and help Hoosier farms realize their full potential.

Until yesterday Indiana was one of only four states -- along with Arkansas, Rhode Island and Vermont -- that didn't have a stand-alone Department of Agriculture overseeing the industry.

Daniels said the department will encourage Indiana farmers, among other things, to tap into new trends such as biofuels that promise to expand the market for their crops. He said the state's agricultural industry can no longer rely on responsibilities scattered throughout state government. * * *

The new department consolidates several agencies and functions into a single entity. Among other things, the department will handle the soil and conservation functions once overseen by the Department of Commerce. Entities such as the State Fair Board and Land Resources Council also now fall under the department's umbrella.

Andy Miller, a popcorn industry executive who is the new department's director, said Indiana farmers may have missed opportunities over the years because the state lacked a unified agriculture department.

He and others are working on a strategic plan, scheduled to be released next month, that will include plans for an economic development hub intended to boost the growth of Indiana's agriculture industry, which contributes $5.2 billion annually to the state's economy.

The plan's goals will include helping Indiana become a leader in the biofuels industry by attracting investment in plants that produce ethanol, a corn-based gasoline additive.

The Daniels administration also wants to expand Indiana's food industry so that it processes more of the crops and livestock the state's farmers raise, Miller said.

An even loftier goal, he said, is capitalizing on the state's growing biotechnology expertise to make it a leader in such high-tech pursuits as genetically altering crops so that they produce pharmacological agents -- what's been termed "bio-pharming." * * *

Randy Woodson, the dean of Purdue University's College of Agriculture, said Purdue will retain responsibility for some agriculture regulatory services under the new department. Those duties include the State Chemist's Office, which regulates animal feed, seed, fertilizer and pesticides.

But he said it was time for Indiana to consolidate most agriculture-related offices under one department.

"What Governor Daniels, the Indiana Farm Bureau and others recognized is that for agriculture to have a strong voice it needed to have a seat at the table in state government," Woodson said.

The bill Daniels signed yesterday also creates a state Office of Rural Affairs that puts under one roof several government functions and funds related to rural issues.

The bill is House Enrolled Act 1008.

The business section Indianapolis Star had a related story yesterday headed "Biofuel boom energizes state plant initiative: Indiana studies incentives, new facilities to make grain-derived products as alternatives to oil." It begins:

For decades Indiana has all but sat on the sidelines as other Midwestern states developed a biofuel industry. But that could change, and soon.

Higher oil prices are making corn-derived ethanol and soybean-based diesel fuel more affordable for consumers. Minimizing energy dependence is in fashion again following the 2001 terrorist attacks and in this era of higher oil prices. And the clean-burning nature of biofuels helps the environment.

In a state with only one ethanol plant and no biodiesel makers, industry watchers say they know of more than a dozen plans for ethanol and biodiesel plants.

On the other hand, see this entry from last week citing a story in the Louisville Courier Journal titled "Ethanol benefits questioned."

Posted by Marcia Oddi on Tuesday, April 26, 2005
Posted to Biotech | Indiana Government | Indiana economic development

Law - Lawsuit filed over Kentucky subdivision

"Lawsuit filed over subdivision: Oldham sewer district against septic systems" is the headline to a story today in the Louisville Courier Journal. Some quotes:

The Oldham County Sewer District wants a court to overturn the county Planning and Zoning Commission's approval of the River Glades subdivision, contending that it should have sewers instead of septic systems.

The sewer district filed suit last week in Oldham Circuit Court claiming that the commission's approval violates state regulations because the district has the right to require that the subdivision be on sewers.

The lawsuit states that the sewer district told the planning commission that sewers should be required. * * *

The lawsuit says that the sewer board voted to require River Glades, which is in the district's planning and service area, to have sewers.

According to the lawsuit, state regulations stipulate that no one can install a septic system or replace one if a public or private "treatment works" is available.

River Glades is less than a mile from a sewer system, which meets the state definition for "availability" of sewers, the lawsuit says.

The lawsuit asks the court to overturn the approval of a septic system and requests a temporary restraining order and an injunction to stop the commission or developers from taking action to allow the construction of septic systems.

Posted by Marcia Oddi on Tuesday, April 26, 2005
Posted to Environment | General Law Related

Ind. Gov't. - More on "Governor defends gifts, ad group campaign"

The Fort Wayne Journal Gazette has an editorial today titled "Ethics in Govenrment."

The Issue: Questions are raised about gifts to Daniels and the state.

Our View: Governor must endeavor to live up to standards he created.

For backround, see this ILB entry from Saturday.

Posted by Marcia Oddi on Tuesday, April 26, 2005
Posted to Indiana Government

Ind. Gov't. - Sounds like a great idea

"Law students to help eliminate unemployment appeals backlog" is the headline to a brief story today in the business section of the Indianapolis Star:

As many as 10 students from Indiana University School of Law-Bloomington will help to eliminate Indiana's unemployment insurance appeals backlog in a new partnership between IU and the Department of Workforce Development.

There are nearly 5,000 backlogged unemployment insurance appeals cases, according to DWD, which makes Indiana last in the nation in the timeliness of unemployment appeals hearings.

The students will receive training and supervision from DWD's full-time administrative law judges. The program will begin May 23 and last through the summer.

Here is a link to the DWD press release on the DWD site. Some additional quotes:
Ron Stiver, DWD Commissioner, stated, “Under Governor Daniels, DWD will strive to provide premier customer service to our Hoosier citizens and employers. We believe this collaboration is a great opportunity to utilize some of Indiana’s brightest talent as part of an innovative solution to a problem that has plagued the department and our state for the past several years.”

The announcement constitutes a unique approach to an issue that has compounded in recent years. Indiana ranks last in the nation in the timeliness of unemployment appeals hearings. Currently there are nearly 5,000 backlogged unemployment insurance appeals cases. The law students will help to eliminate Indiana’s unemployment insurance appeals backlog while receiving intensive training from the Department’s full-time administrative law judges.

The students were selected from a large group of applicants based upon merit achieved while in law school. They may elect to receive academic credit for their service to the State.

Leonard Fromm, Dean of Students of Indiana University School of Law, stated, “We are proud to assist the State with its unemployment appeals process and are excited the students participating will receive a great experience while performing their duties diligently to ensure all parties receive their proper due process.”

Barry O’Connell, of the United States Department of Labor, Region V, believes the partnership between the DWD and Indiana University School of Law is excellent. “This is an innovative way to serve the State of Indiana and help to address a growing problem, while providing a great experience to the student administrative law judges.”

The program will begin on May 23, 2005 and last throughout the summer months.

Posted by Marcia Oddi on Tuesday, April 26, 2005
Posted to Indiana Government

Ind. Courts - Daniels to sign judicial pay raise bill

"Daniels to sign judicial pay raise bill" is the headline to a story today by Michele McNeil in the Indianapolis Star. Some quotes:

After eight years without a pay raise, Indiana's judges and prosecutors are a signature away from getting hefty salary increases courtesy of criminals and others who use the state's court system.

Legislation on its way to Gov. Mitch Daniels would create a new court fee to pay the $14 million cost of the raises, which are deemed critical to keeping good lawyers working in the public sector. Daniels plans to sign it, a spokeswoman said.

The raises range from 16 percent for Supreme Court justices to 23 percent for trial court judges, prosecutors and deputy prosecutors. That equates to pay raises up to $20,500.

Members of the state's high court will see their salaries increase July 1 to $133,600 from $115,000; appeals court judges will go to $129,800 from $110,000; and trial judges and prosecutors will go to $110,500 from $90,000. * * *

The legislation also protects judges and prosecutors from another lull in pay raises by tying future increases to those granted to state employees in similar salary brackets.

The Senate approved Senate Bill 363 by a 42-4 vote Monday; the House voted 75-17.

The cost of the raises would be born by users of the court system. A new $15 fee would be imposed on most people convicted of crimes and on any filing in civil or probate court under House Bill 1113, which already has advanced to the governor's office. A filing in small claims court will require a new $10 fee.

Posted by Marcia Oddi on Tuesday, April 26, 2005
Posted to Indiana Courts

Ind. Courts - Judge's resignation leads commission to drop case

"Judge's resignation leads commission to drop case" is the headline to a story today in the Indianapolis Star. Quotes:

The Judicial Qualifications Commission on Monday filed documents to drop a misconduct case against Warren Township Judge Lori K. Endris, who is resigning from her elected office.

In court records, the commission said Endris' resignation from the Warren Township Small Claims Court bench makes it unnecessary to pursue disciplinary actions against her.

Endris, who has served as judge since 2001, had faced three judicial disciplinary charges for alleged misconduct.

The commission claimed Endris allowed nonlawyers to file claims seeking more than $1,500 on behalf of others; allowed claims on contracts and accounts without requiring the claimants to attach copies of contracts and statements; and entered judgments against small-claims defendants without giving them the required 10 days' notice.

In an April 15 letter to township officials, Endris cited a personal injury that requires extensive surgery and a lengthy period of recovery as the reason she is stepping down, effective Oct. 1.

Posted by Marcia Oddi on Tuesday, April 26, 2005
Posted to Indiana Courts

Ind. Gov't. - Indy Council rejects plan to protect rights of gays

Following up on an entry from Saturday ("Indianapolis city-county council to vote Monday on banning anti-gay bias," available here) is this story today in the Indianapolis Star, by John Fritze and Will Higgins, headlined "Council rejects plan to protect rights of gays: Bipartisan majority defeats city ordinance to ban discrimination in the workplace." Some quotes:

A far-reaching proposal to ban workplace discrimination against gay people was killed by a virtually silent City-County Council on Monday.

Despite last-minute attempts at compromise -- and calls placed by Mayor Bart Peterson over the weekend, seeking to shore up support -- the measure died 18-11 on a bipartisan vote. * * *

In the end, it was not Republicans who killed the measure -- though all but one, Scott Keller, voted against it -- but five Democrats, who broke with the majority of their caucus to oppose the proposal. * * *

In Indiana, similar anti-discrimination ordinances have been approved in Bloomington and Lafayette. Nationwide, more than 100 communities and at least 16 states and Washington, D.C., also have some form of anti-discrimination statute in place for private employment, according to a national gay-rights group.

In Indianapolis, though, some said a campaign by the opposition eroded support. "The onslaught of misinformation has been almost numbing," said Council Democrat Jackie Nytes, the proposal's sponsor. "I am surprised that people feel as swayed as they do by the clear misinformation."

For example, supporters said, some council members were being told the measure would affect churches. Indianapolis businesses with six or more employees, as well as real estate agents, would have been covered under the ordinance, but religious institutions and certain nonprofits would have been exempt. City code already protects workers from discrimination based on race, religion, age and other characteristics.

The Star story is accompanied by a sidebar showing "How They Voted."

The Munster (NW Indiana) Times has a story today by Brendan O'Shaughnessy headlined "Gay rights group says Daniels ducked issue: Some cities have gay bias policy; state does not" Some quotes:

INDIANAPOLIS | As the state's capital considers a law banning bias against gays in the workplace, some activists have accused Gov. Mitch Daniels of ducking the issue.

The Daniels campaign had a policy prohibiting discrimination based on sexual orientation, and he met with leaders of the gay community as a candidate, angering some right-wing religious supporters.

But Daniels has not signed a Department of Administration policy banning sexual orientation and identity bias for state employees under his own name. A spokeswoman said the old policy continues and Daniels will update it after the busy legislative session. * * *

Because resolutions [to amend the Indiana Constitution] do not need a governor's signature as bills do, Daniels did not have to take a strong stand on a controversial measure to ban gay marriage that took its first step last month.

Some activists think the state may be forced to confront the amendment if it becomes part of the state constitution in 2008 at the earliest. Michigan's attorney general issued an opinion that a similar amendment there prohibits public employers from offering benefits to same-sex partners in future contracts.

Daniels said he thought the amendment in Indiana would not go that far. "I feel very strongly about preventing discrimination on any basis, and Indiana law should reflect that," he said last month.

If the state had a law protecting sexual orientation as a basis for firing the way it does for race, gender and other categories, then Indianapolis and five other cities in the state wouldn't need such laws and could improve economic development by reversing an image of intolerance, [Ellen Andersen, president of the Indiana Stonewall Democrats] said. Several state universities and major corporations in Indiana have employee policies banning sexual orientation bias.

Michigan City and Fort Wayne passed such a law in 2002, as did Bloomington, Lafayette and West Lafayette in 1993. The Indianapolis City-County Council is considering a proposal that bars businesses with more than six employees from firing, mistreating or refusing to hire people because they are gay. The proposal also says real estate salespeople and landlords must not stop gay people from buying or renting a home.

Sen. Anita Bowser, D-Michigan City, who fought the passage of the constitutional ban on gay marriage, said she thinks the state should consider a ban on gay discrimination as other states have.

Posted by Marcia Oddi on Tuesday, April 26, 2005
Posted to Indiana Government

Ind. Gov't. - East Porter approves biology texts despite lack of creationism

"East Porter approves biology texts despite lack of creationism: Board members express reluctance in measure" is the headline to a story today by Elizabeth Holmes in the Munster (NW Indiana) Times. Some quotes:

KOUTS | Although several board members adamantly expressed reluctance in doing so, the East Porter County school board approved the adoption of biology texts at their meeting on Monday evening, despite the book's exclusion of creationism.

At the board's last meeting on April 11, President Bob Martin and Vice President Tim Bucher shared concerns they had with the textbook recommended by a parent-teacher-administrator committee because it taught only evolution, which is a state standard, and not other theories, which are not approved by the state.

They tabled their vote at that time, to allow Martin and Bucher to review the selected text.

Two weeks later, Martin remained unconvinced of the merit of the text. He cast the only dissenting vote, citing his own research.

"I also went to several university professors and I've read several books on the theory of evolution," he said. "There's much written about the theory of evolution today that discounts it as being similar to the theory that the world was flat, and was taught in science for years."

See earlier ILB entries on this story from 4/13/05 and 4/15/05.

Posted by Marcia Oddi on Tuesday, April 26, 2005
Posted to Indiana Government

Environment - Pollution provision removed from bill

"Pollution provision removed from bill: State can still be stricted than U.S." is the headline to an AP story by Rick Callahan, published this morning in the Louisville Courier Journal. Some quotes:

INDIANAPOLIS -- A [House-Senate conference] committee removed a bill's provision that would have barred state agencies from adopting pollution rules tougher than federal standards.

Sen. Beverly Gard, R-Greenfield [, named an advisor to the conference committee], had decried the measure as "horrible public policy" and insisted on the change.

Gard, who heads the Senate Energy and Environmental Affairs Committee, said yesterday that late last week she refused to sign any conference committee compromise related to environmental issues until the provision was removed.

"I essentially said, 'We're not doing anything until this is gone,' " she said.

Sen. Michael Young, R-Indianapolis, sponsor of a bill that included the provision, agreed last week to remove it from the legislation that regulates small businesses. * * *

[Rep. David Wolkins of Winona Lake, who was the author of the provision in question,] said yesterday that he had agreed to ask Young to remove the provisions partly because a legislative study group has been created to examine the issue over the summer. He, Gard and others will be part of that group.

"That was my goal, so I didn't take it as a loss at all," he said, adding: "There was nothing personal about this. It was just a disagreement on an environmental issue between myself and Senator Gard."

Current Indiana law requires the state's environmental agency to conduct scientific and fiscal-impact studies in cases where the agency wants Indiana's environmental rules to be stricter than federal regulations.

"The administration's position is that if there's a new regulation, then there must be a good justification for it," said Jane Jankowski, a spokeswoman for Gov. Mitch Daniels.

To access background on this bill, Senate Bill 298, check this ILB entry from April 16th. What happens next? Once a conference committee report is approved and signed by all the conferees, it is filed in both the House and Senate. The conference committee report is then eligible to be called up for an up-or-down vote (with no changes) in each house. If it passes both houses, it goes to the governor.

[More] The Munster (NW Indiana) Times has a story today by Angela Mapes, headlined "Environmental management remains under state control: Critic does not expect measure to be revived." Some quotes:

INDIANAPOLIS | A proposal that would have given the federal government the final say over Indiana's environmental affairs was killed by a House-Senate conference committee. * * *

Because it was amended into Senate Bill 298, the provision never came under the scrutiny of the Energy and Environmental Affairs Committee. That committee's chair, Sen. Beverly Gard, R-Greenfield, called the move an "end run" and was the provision's most vocal opponent.

Gard said she believed her position on the committee was her only weapon, so she refused to sign any environment-related legislation until the provision was stripped from the bill by the conference committee last week.

"I simply went on strike last week," Gard said. "They finally figured out I meant what I said."

Gard said she doubts the General Assembly will see the matter revived.

[Update 4/27/05] The Evansville Courier& Press has an editorial today on Gard's success, with this lead: "With little fanfare, a Republican Indiana state senator last week achieved one of this legislative session's more significant victories for common-sense public policy."

Posted by Marcia Oddi on Tuesday, April 26, 2005
Posted to Environment | Indiana Government | Indiana Law

Monday, April 25, 2005

Ind. Decisions - 7th Circuit posts three today

LEKAS, CHRISTOPHER v. BRILEY, KENNE (ND Ill.) [23 pp.]

EDELSON, HARRY v. CH'IEN, RAYMOND K (ND Ill.) [27 pp.]

USA v. SCOTT, WALTER K. (SD Ind., Sarah Evans Barker, Judge) [9 pp.]

Before POSNER, RIPPLE, and MANION, Circuit Judges.
POSNER, Circuit Judge. Kevin Scott was convicted of bank fraud, of fraudulently using another person’s Social Security number, and of transacting in money obtained through crime (“money laundering” in the broad, which is also the statutory, sense). He was sentenced to 120 months in prison and ordered to pay more than $1.3 million in restitution to the victims of his crimes. He appeals on a number of grounds, four of which, all relating to the sentence, have sufficient substance to warrant discussion. The first is that he received an illegal sentence because the judge thought the sentencing guidelines were mandatory, yet United States v. Booker, 125 S. Ct. 738 (2005), held that they are merely advisory. He was sentenced before the Booker decision and failed to challenge the mandatory character of the guidelines in the district court; to obtain relief from us he must therefore show that the sentence amounted to a plain error. United States v. Paladino, 401 F.3d 471, 481 (7th Cir. 2005). Under the procedure adopted in Paladino, if we are uncertain whether the judge would have imposed the same sentence had he (or in this case she) realized that the guidelines are merely advisory, we direct a limited remand for a statement by the judge, id. at 483-85; for that is the only way we can determine whether the sentencing error actually harmed the defendant by illegally protracting his term of imprisonment. * * *

To summarize, the conviction and the award of restitution are affirmed, but the judgment is vacated and the case remanded for resentencing.

Posted by Marcia Oddi on Monday, April 25, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of appeals posts three; Tax Court one today

S & B Construction LLC, et al. v. Old Fort LLC, et al. (4/25/05 IndCtApp) [Real Estate]

John C. Gress v. Fabcon Incorporated, et al. (2/1/0 IndCtApp) [Employment Law] [Initially NFP]


Alonzo Higginbotham v. State of Indiana
(3/10/05 IndCtApp) [Criminal Law & Procedure] [Initially NFP]

City of Anderson, Indiana v. Indiana Department of Local Government Finance (4/25/05 IndTaxCt - NFP)
FISHER, J.

The City of Anderson, Indiana (City) appeals its 2004 Budget Order and 100% of Budget Levy Certification (2004 Order) issued by the Indiana Department of Local Government Finance (DLGF). The matter is before the Court on both the City’s motion for summary judgment and the DLGF’s motion for judgment on the pleadings. While the parties’ motions raise several issues for this Court’s consideration, one is dispositive: whether the Court has subject matter jurisdiction. * * * The Court dismisses the case for lack of subject matter jurisdiction.

Posted by Marcia Oddi on Monday, April 25, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending April 22, 2005

Here is the Indiana Supreme Court's transfer list for the week ending April 22, 2005. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column. Two cases were granted transfer, one dealing with contracts/arbitration, and the other with, among other things, attorney fees.

Posted by Marcia Oddi on Monday, April 25, 2005
Posted to Indiana Transfer Lists

Sunday, April 24, 2005

Ind. Law - In Indiana, a suspended student can get the gavel

"In Indiana, a suspended student can get the gavel: Court keeps kids in line, supporters say, but critics cite civil rights concerns" is the headline to a lengthly and important report today in the Indianapolis Star by Staci Hupp that I cannot begin to adequately summarize.

Posted by Marcia Oddi on Sunday, April 24, 2005
Posted to Indiana Law

Environment - Stories today

"Cleanup at NIPSCO site unlikely this year: State wants better remediation plan in place" is the headline to a story today in the Munster (NW Indiana) Times. The story begins:

HAMMOND | It looks like downtown's most polluted area won't be getting cleaned up this year, though not for lack of trying.

Six-foot security fencing cordons off the site on the south bank of the Grand Calumet River just west of Hohman Avenue, where century-old toxins permeate the soil and adjacent river-bottom sediment.

NIPSCO, owner of the property, submitted a cleanup plan to state regulators last year, but it was returned as not good enough.

"Technically, this is a very complex site," said Richard Harris, project manager with the Indiana Department of Environmental Management. "We want to make sure any remediation is done correctly."

NIPSCO forerunner Northern Indiana Gas & Electric Co. opened its manufactured gas plant, or MGP, on the property in 1901. The facility made natural gas out of coal to run generators that produced electricity for homes and businesses as far away as Michigan City by 1912.

The process also produced large quantities of cancer-causing polynuclear aromatic hydrocarbons and toxic volatile organic compounds such as benzene, toluene, pyrene and xylene, which remain as deep as 20 feet below the river sediments.

The plant ceased production in 1929, but the property was used by NIPSCO for vehicle maintenance and storage until 1980.

The Hammond site is one of 36 MGPs in Indiana -- 13 of them owned by NIPSCO -- enrolled in the state Voluntary Remediation Program, which provides expert assistance to property owners in reducing risks associated with contaminants as they relate to human health and the environment.

"County faces lead legacy" is the headline to a story today in the South Bend Tribune. Some quotes:
From urban neighborhoods to far-flung hamlets, St. Joseph County is struggling with the legacy of lead.

An average of 100 children per year are being diagnosed with lead poisoning in the county, the St. Joseph County Health Department said -- with only 10 percent of the most at-risk population, age 6 and younger, being tested.

In 2001 alone, 217 children had dangerous lead levels in their blood.

The U.S. Centers for Disease Control and Prevention says every child in the county faces the risk of lead poisoning, because of where they live or spend their time.

South Bend poses the biggest problem. About 88 percent of the city's housing was built before 1978, when lead was banned as a paint additive. About half of the city's homes were built before 1950.

The outlying towns of Walkerton, North Liberty, Lakeville, New Carlisle and Osceola are also "high-risk areas" for lead exposure because of their older housing stock, the health department said. No testing or outreach has begun there yet. * * *

Lead exposure comes from a variety of sources: dust created by peeling paint, household surfaces rubbing together, such as windows and doors, or soil tainted by paint chips falling from a home. Home renovations can stir up lead dust, too, unless the proper steps are taken.

A recent study found a possible link between summer winds kicking up dirt in urban neighborhoods and spikes in the rate of lead poisoning among children.

Posted by Marcia Oddi on Sunday, April 24, 2005
Posted to Environment

Saturday, April 23, 2005

Ind. Decisions - Still more on "Can a council grant a multiyear employment contract that extends beyond the terms of a majority of its members?"

Earlier entries on this issue: "Can a council grant a multiyear employment contract that extends beyond the terms of a majority of its members?" may be found in ILB postings from: Oct. 30, 2004; Nov. 16, 2004; Nov. 30, 2004; and Dec. 17, 2004.

Today the Munster (NW Indiana) Times reports:

MERRILLVILLE | The courts have once again delivered good news for former Police Chief John Shelhart, his attorney said Friday.

Shelhart's attorney, David W. Westland, said he learned Thursday that the Indiana Court of Appeals has ruled on the side of his client in separate motions.

"Certainly we were pleased," Westland said.

Shelhart, who declined comment, has continued to defend a Jan. 9, 2004, lawsuit filed against him by the town. The lawsuit contends Shelhart's police chief contract was illegal because it restricted the right of the majority of the new Town Council to remove him and name a successor.

The recent decision by the Indiana Court of Appeals denied a motion by Town Attorney Stephen Bower that the Merrillville case and a case involving former New Chicago Police Chief Ronald Taylor be consolidated, Westland said.

In the New Chicago case, another judge ruled the contract of Taylor couldn't be extended beyond the term of the sitting New Chicago Town Council.

Westland has continued to argue the cases are not similar because the Merrillville Town Council was not a "lame duck" council like the New Chicago Town Council.

The Court of Appeals in its second motion denied the town's request to prohibit Shelhart from going forward with collecting the salary from his police chief position, which a lower court ruled he should receive.

"The Court of Appeals said he can go forward with his attempt to get paid while the case is under appeal," Westland said.

Westland also received good news last year from Lake Superior Court Judge Robert Pete, who in two separate rulings sided with Shelhart and ordered the town to pay back his police chief salary with interest.

Docket information may be located under Case Number: 45 A 04 - 0504 - CV - 00176; TOWN OF MERRILLVILLE, ET. AL. -V- SHELHART, JOHN.

Posted by Marcia Oddi on Saturday, April 23, 2005
Posted to Ind. App.Ct. Decisions

Environment - Stories today

"Slurry task force seeks to protect the environment" is the headline to an AP story published today in the Louisville Courier Journal. Some quotes:

FRANKFORT, Ky. -- Research into nearby old underground mineworks should be required for permits for coal slurry ponds, and new slurry disposal methods should be considered, a new study says.

The Black Water Task Force that conducted the yearlong study also recommended more regular inspections of slurry ponds and piping. The recommendations were contained in a 58-page report released yesterday. * * *

Coal slurry -- commonly called black water -- results from the washing and preparation of coal for market. The mixture of water and small particles of coal, rock and clay is typically pumped into an impoundment and allowed to settle.

In October 2000, black water in a Martin County Coal Corp. impoundment, which had been seeping into an abandoned underground mine, broke through and a flood of thick, gooey sludge rushed into open waterways.

"Timber Trails developer invites state oversight" is the headline to a story today in the Chicago Tribune. Some quotes:
Developers of the former Timber Trails golf course in Western Springs enrolled in a voluntary remediation program with the Illinois Environmental Protection Agency this week, hoping the agency's oversight will quell public fears of contamination at the site.

Dartmoor Homes Vice President Brian Taylor said developers are going to figure out which areas need to be tested at the site at Wolf and Plainfield Roads, take soil borings in the next week and then submit an action plan to the agency. * * *

Critics of the controversial development, including some who worry about the number of trees being cut as well as potential environmental hazards from the pesticides used at the former golf course, had asked the state agency to get involved. Until now, the agency had only conducted some brief site inspections regarding air quality.

Dartmoor Homes, which is planning 338 units of housing, has battled with some residents and neighbors, including the group Save the Timber, who worry about overtaxing public services and roads in the area and about the loss of the trees. Developers had promised to test the soil for contaminants before construction but cut down some trees on the property April 8, before samples were taken.

Posted by Marcia Oddi on Saturday, April 23, 2005
Posted to Environment

Ind. Gov't. - Sound familiar? (Kentucky) Governor's Mansion needs more than new paint

A story in the Louisville Courier Journal today reports:

FRANKFORT, Ky. -- Paint is chipping and peeling from walls and doors. Some floors are cracked, and the patio is sinking.

Welcome to the Kentucky Governor's Mansion, home of Gov. and Mrs. Ernie Fletcher.

First lady Glenna Fletcher said yesterday the 1914 residence adjacent to the Capitol is showing signs of serious wear and announced a private fund-raising program of as much as $5 million to do something about it.

"When Ernie and I first moved into the residence we realized immediately that there were many areas that needed serious attention," the first lady said at a news conference in the mansion's ballroom.

After consultation with a historic preservation expert and an architect, she said she decided to launch the first major renovation of the building since the 1979-83 administration of Gov. John Y. Brown Jr.

"Frankly, it would be a lot easier to just do a few stopgap, patchwork measures. But we feel it is our responsibility to preserve a treasure for the future generations of Kentuckians," she said. "The question is not can we afford to do this work, but can we afford not to do this work."

Posted by Marcia Oddi on Saturday, April 23, 2005
Posted to Indiana Government

Ind. Gov't. - Governor defends gifts, ad group campaign

"Governor defends gifts: Daniels answers critics who ask if he's broken his own rules by accepting RV, trip" is the headline to a story today in the Indianapolis Star by Mary Beth Schneider. Some quotes:

Gov. Mitch Daniels said Friday there's no comparison between the ban on gifts that state employees must follow and the recreational vehicle and free jet trip he has accepted since taking office.

Both were not personal gifts to him, but instead were donations to the state enabling him to conduct state business, the governor said.

"I won't say I resent the question, but I find it very misguided," Daniels told reporters.

As a candidate, Daniels called for higher ethics standards in state government. And as governor, he has followed through with bans on all gifts from people and companies who do business or are seeking to do business with the state.

Last week, the State Ethics Commission fined and reprimanded some state employees for violating that ban.

One -- Rodger McKinley, superintendent of the Madison Correctional Facility, was fined $100 for accepting a $20 hat and two meals worth less than $10 from employees of the public health contractor for the state's prison system.

The fines for seemingly small infractions led some in the public to question why Daniels could accept the loan of a $175,000 recreational vehicle along with free soy biodiesel to fuel it; a free private jet trip to Washington while on state business; and an autographed football from Colts quarterback Peyton Manning. * * *

Asked where he draws the line between accepting something that saves taxpayers money and refusing something for fear it was given to influence a state decision, Daniels snapped: "I think your thinking is totally confused."

The line is clear, he said: No gifts from people who want something from the state. That line, though, can seem fuzzy.

Manning gave footballs to Daniels and House and Senate leaders at a time when the Colts were lobbying hard for funding for a new stadium. And the recreational vehicle industry is lobbying for a sales tax exemption on RVs made and purchased in Indiana.

Jay Stewart, executive director of the Chicago-based Better Government Association -- a group the Daniels campaign favorably cited during the 2004 campaign for its report on ethics in state government -- said appearances matter. The average citizen, he said, "doesn't understand the finer points of ethics laws" and won't see why a state employee gets fined for taking a baseball cap while the governor gets to accept an RV.

"Gifts just create problems," Stewart said, adding that in some states, they have led to scandals. "That," he said, "is why people are skeptical. It's well-deserved."

"Daniels defending ad group’s campaign" is the headline to a story today by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:
A non-profit group pushing parts of Gov. Mitch Daniels’ agenda is accepting money from corporations in larger amounts than state campaign finance laws would allow and has not registered with the state lobbying commission.

Aiming Higher Inc. – run by former campaign manager Bill Oesterle, a Terre Haute attorney and a state senator – is a public advocacy non-profit group.

Oesterle and the governor’s office contend they are doing nothing wrong.

Aiming Higher Inc. has been financed by money left over from Daniels’ transition committee, which raised $826,000 for the transition and inaugural events. About $558,000 was spent, and the remaining $267,000 was transferred to Aiming Higher in mid-February. * * *

The group first paid almost $45,000 for public opinion polls on some of Daniels’ priorities and on Wednesday began running $70,000 worth of radio ads statewide that feature Daniels urging Hoosiers to contact their legislators to vote for a balanced budget. The ads were even the governor’s idea.

Oesterle said they are also using campaign supporters who favored daylight-saving time to contact their local lawmakers and urge them to vote for the controversial bill.

“This was created as an advocacy group,” he said. “None of the activities we are engaged in advocate any specific thing. These are the governor’s stated positions.”

The contributions to the transition committee, which are now financing Aiming Higher, included hundreds of thousands of dollars in donations from Indiana and out-of-state corporations. For instance, Eli Lilly and Co. – a former Daniels employer – has given $35,000.

DaimlerChrysler Corp. and Altria Corporate Services Inc. have each given $25,000. Altria is the parent company of tobacco giant Philip Morris, and legislators are currently considering a cigarette tax increase that Daniels would likely have to sign off on.

If these companies were to give directly to Daniels’ campaign committee, they would be limited to $5,000 each.

“These are crafty souls,” said Rep. Win Moses Jr., D- Fort Wayne. “It is really atrocious. It may be technically legal, but it certainly breaks the spirit of the law and sets a whole new standard on partisan shenanigans.”

Another intriguing donation was $10,000 from the Indianapolis Colts in February.

Daniels has been credited in recent weeks with bringing together all sides and making a financing deal for a new Colts stadium possible. He also has committed millions in state tax dollars to the project. * * *

It is also unclear whether Aiming Higher – if not a political action committee – should be registered with the Indiana Lobby Registration Commission.

The definition of lobbying in state code means “communicating by any means, or paying others to communicate by any means, with any legislative official with the purpose of influencing legislative action.”

Oesterle said he doesn’t believe it is required to register because it isn’t speaking directly with lawmakers.

“We have not registered as lobbyists for the simple reason we don’t have any employees and you register as a lobbyist if you are employing someone else to lobby or you are being employed to lobby,” he said. “We fall under a grass-roots lobbying exception.”

Posted by Marcia Oddi on Saturday, April 23, 2005
Posted to Indiana Government

Ind. Law - Girls have right to expect privacy

"Girls have right to expect privacy" is the headline to an editorial today in the Indianapolis Star weighing in against Attorney General Carter's efforts to obtain "the medical records of 81 low-income girls younger than 14 who have gone to Planned Parenthood clinics seeking reproductive help that can vary from counseling to pregnancy tests, screening for sexually transmitted diseases and birth control services."

For background, see this April 19th ILB entry.

Posted by Marcia Oddi on Saturday, April 23, 2005
Posted to Indiana Law

Ind. Gov't. - Indianapolis city-county council to vote Monday on banning anti-gay bias

The Indianapolis Star reports today, in a story by John Fritze, that:

Gay workers and homebuyers would be protected from discrimination under a sweeping civil rights proposal moving toward a vote Monday in the City-County Council.

Indianapolis businesses with six or more employees would be prohibited from treating workers differently because of their sexual orientation or gender identity -- a shift that would go further than federal and state anti-discrimination law.

Under the proposal, businesses could not fire, mistreat or refuse to hire peoplebecause they are gay. Real estate salespeople and landlords could not prohibit gay or transgender individuals from buying or renting a home. * * *

The Greater Indianapolis Chamber of Commerce has not taken a position on the proposal, No. 68.

Several of the city's largest employers already have internal policies against discriminating on the basis of sexual orientation. Eli Lilly and Co. publishes on its Internet site that it welcomes differences in race, religion and sexual orientation.

Joan Todd, a spokeswoman for the company, did not comment on the ordinance itself but said diversity is key to its business.

"Lilly knows that people are the most important resource," she said. "For us, this is just smart business, and it's also the right thing to do."

Key leaders on both sides of the issue said it was unclear how Monday's vote by the City-County Council will shake out. The council is controlled 15-14 by Democrats, but not all Democrats are expected to vote for it, and not all Republicans will oppose it.

One Republican councilman, Scott Keller, is sponsoring the measure, which was approved by the Administration and Finance Committee 4-2 Tuesday.

Mayor Bart Peterson, a Democrat, said he supports the measure in principle.

"Conceptually, I'm very supportive of it," he said. "I need to study every word in it a little bit closer."

[Update 4/25/05] The Star has an editorial this morning headed: "To be fair, expand anti-bias policy. Our position is: Marion County should add sexual orientation to categories protected against discrimination."

Posted by Marcia Oddi on Saturday, April 23, 2005
Posted to Indiana Government

Law - Restrictive Covenants Stubbornly Stay on the Books

"Restrictive Covenants Stubbornly Stay on the Books" is the headline to a story published Thursday in the NY Times. It begins:

RICHMOND, Va. — Nealie Pitts was shopping for a house for her son three years ago when she spotted a for-sale sign in front of a modest brick bungalow here. When she stopped to ask the owner about it, at first she thought she misheard his answer.

"This house is going to be sold to whites only," said the owner, Rufus Matthews, according to court papers filed by Ms. Pitts, who is African-American. "It's not for colored."

Mr. Matthews later testified before the Virginia Fair Housing Board that he believed a clause in his deed prohibited him from selling to a black buyer. A 1944 deed on his property restricts owners from selling to "any person not of the Caucasian race."

Such clauses have been unenforceable for nearly 60 years. But historians who track such things say that thousands of racist deed restrictions, as well as restrictive covenants governing homeowner associations, survive in communities across the country.

Now, a handful of critics say it is time to wipe the covenants off the books. * * * The Supreme Court ruled against racially restrictive covenants in 1948, and they were outlawed by the federal Fair Housing Act of 1968. But because so many of them remain in deeds and neighborhood bylaws, some states, including California, have moved to eliminate them. Advocates for their removal reason that the restrictions, even if illegal, provide justification for subtle racism - or, as in Mr. Matthews's case, outright discrimination. (Mr. Matthews declined to comment.)

Posted by Marcia Oddi on Saturday, April 23, 2005
Posted to General Law Related

Friday, April 22, 2005

Ind. Decisions - Court of Appeals posts nine opinions today

Gerald Reed v. State of Indiana (4/22/05 IndCtApp) [Criminal Law & Procedure]

East Chicago Police Dept., et al v. Michelle Bynum, et al (4/22/05 IndCtApp) [Tort Claims Act]
Sharpnack, Judge

* * * East Chicago argues that the trial court erred by denying its motion for summary judgment and by determining that it was not entitled to governmental immunity under the law enforcement immunity provision of the ITCA. Governmental immunity from suit is governed by the ITCA. See Ind. Code § 34-13-3-3. Governmental entities and their employees are subject to liability for torts committed by them unless they can prove that one of the immunity provisions of the ITCA applies. * * *

East Chicago argues that it is immune from liability for the police officers’ alleged negligence pursuant to Ind. Code § 34-13-3-3(8), See footnote commonly referred to as the law enforcement immunity provision of the ITCA * * *.

We recently addressed the applicability of immunity under Ind. Code § 34-13-3-3(8) when a police officer is alleged to have violated his statutory duty of reasonable care under Ind. Code § 9-21-1-8. See Patrick v. Miresso, 821 N.E.2d 856 (Ind. Ct. App. 2005), trans. pending. * * *

Given our analysis and holding in Patrick, we conclude that East Chicago is not entitled to law enforcement immunity under the ITCA under the circumstances of this case * * * Accordingly, we cannot say that the trial court erred by denying East Chicago’s motion for summary judgment. See, e.g., Patrick, 821 N.E.2d at 866-868. * * *

For the foregoing reasons, we affirm the trial court’s denial of East Chicago’s motion for summary judgment, motion for judgment on the evidence, and motion to correct error. Affirmed.
BAKER, J. and FRIEDLANDER, J. concur

Shannon Jones v. State of Indiana (4/22/05 IndCtApp) [Criminal Law & Procedure]

Craig A. Everage v. NIPSCO (4/22/05 IndCtApp) [Procedure]

Jerrica L. Sanders v. State of Indiana (4/22/05 IndCtApp) [Criminal Law & Procedure]


Joseph Johnston v. Terry Johnston
(4/22/05 IndCtApp) [Family Law]

State of Indiana v. Orval Casada (4/22/05 IndCtApp) [Criminal Law & Procedure]
May, Judge

After a jury found Orval Casada guilty of failure to register as a sex offender, a Class D felony, the trial court found sua sponte “the State of Indiana has failed to allege and prove the Defendant knowingly or intentionally violated the relevant registration statute.” The court then entered a judgment of acquittal, from which the State appeals. We reverse. * * *
DARDEN, J., and BARNES, J., concur.
Hispanic College Fund, Inc., A Delaware Corp. v. National Collegiate Athletic Assoc. (4/22/05 IndCtApp) [Contracts]
May, Judge
The Hispanic College Fund (“HCF”) appeals a judgment on the pleadings in its action against the National Collegiate Athletic Association (“NCAA”). The HCF raises three issues on appeal, which we consolidate and restate as:

1. Whether the trial court properly found the NCAA’s decisions regarding its affiliated members were not subject to the court’s review absent allegations of fraud or illegality; and

2. Whether the NCAA’s decision affecting HCF should have been reviewed for arbitrariness and capriciousness because the NCAA violated a contractual duty to deal with HCF in good faith. * * *

CONCLUSION. The trial court correctly determined it could neither enforce the NCAA’s internal rules nor review the NCAA’s interpretation and application of its rules. We accordingly affirm the judgment on the pleadings in favor of NCAA. Affirmed.
DARDEN, J., and BAILEY, J., concur

David Paschall v. State of Indiana (4/22/05 IndCtApp) [Criminal Law & Procedure]

Posted by Marcia Oddi on Friday, April 22, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts two today

IN RE: LARRY EDEN (ND Ill.) [12 pp.]

Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. When an Illinois court dissolved the marriage between Larry Eden and his wife, Jean Eakins, it ordered Eden to compensate Eakins and her legal counsel, Robert A. Chapski, Ltd. (“Chapski”), for the attorney’s fees she had incurred in the divorce proceeding. The state court later determined that this debt was not dischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(5) and therefore survived Eden’s Chapter 13 bankruptcy. That ruling prompted Eden to initiate an adversary proceeding contending that the bankruptcy court had reserved to itself exclusive jurisdiction over the dischargeability of the debt. The bankruptcy court rejected that contention and dismissed Eden’s adversary complaint; and the district court affirmed. We likewise affirm.

USA v. PUCKETT, DAWON D. (ND Ill.) [22 pp.]

Before BAUER, POSNER and COFFEY, Circuit Judges.
COFFEY, Circuit Judge. On July 18, 2002, Dawon Puckett was convicted before a jury of armed bank robbery, 18 U.S.C. § 2113(a) & (d), using a firearm during a violent crime, 18 U.S.C. § 924(c)(1)(A), and possession of 63 grams of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1). He was sentenced to a period of confinement of 384 months to be followed by six years’ supervised release and ordered to pay restitution in the amount of $27,674. On appeal, Puckett argues that his convictions should be reversed, alleging that the trial court erred in: 1) admitting evidence of his prior conviction for drug trafficking and thereby unfairly prejudicing the jury against him; and 2) refusing to instruct the jury on the lesser-included offense of simple possession. We affirm.

Posted by Marcia Oddi on Friday, April 22, 2005
Posted to Ind. (7th Cir.) Decisions

Law - Indiscretion Gets Juror In Trouble

"Indiscretion Gets Juror In Trouble: Va. Woman May Get Bill for Court Costs" is the headline to a story today in the Washington Post. Some quotes:

The juror in the Prince William County murder trial swore to the judge that she had not bought any newspapers. The defense attorney swore that she had.

Then came the videotape.

The attorney produced a surveillance tape from a 7-Eleven in Old Town Manassas showing juror Lindy L. Heaster buying a copy of The Washington Post and the Potomac News -- and the juror suddenly became the accused.

Circuit Court Judge Rossie D. Alston Jr. threw out a murder conviction against Gerardo N. Lara Sr., the man Heaster had helped convict of killing his estranged wife. Alston found Heaster in contempt of court this week and indicated that she could be forced to pay the cost of the five-day trial. And yesterday, prosecutors said they are considering perjury charges against Heaster.

It has not been determined whether Heaster violated the judge's order to avoid media coverage of the trial, but it is clear that her purchase of the newspapers will cost her dearly, officials said yesterday. The judge also hinted at possible jail time, said Prince William Commonwealth's Attorney Paul B. Ebert.

"Very likely, we'll consider perjury," said Ebert, who is waiting to see what the judge does before making a decision. "This has happened before, where jurors have not obeyed the court's instruction. It's costly and very frustrating. It's an affront to the entire process."

Posted by Marcia Oddi on Friday, April 22, 2005
Posted to General Law Related

About this blog - More about "ILB expected to end three-year-run this month"

I've received a number of nice notes about my entry yesterday titled "ILB expected to end three-year-run this month." Thanks to all of you; this is an unexpected pleasure. As a result, I'm thinking about posting excerpts from the notes this weekend; please let me know if you have an objection to my posting your name (but of course no email link).

Posted by Marcia Oddi on Friday, April 22, 2005
Posted to About the Indiana Law Blog

Econ. Dev. - More on steel industry rebirth in NW Indiana

Following upon the ILB entry last Friday on the steel industry rebirth in NW Indiana is this story today in the Gary Post-Tribune that begins:

Mittal Steel USA plans to make East Chicago its U.S. headquarters for research and development, the latest coup for Northwest Indiana.

The steel company is closing its Bethlehem, Pa., research lab and bringing 70 employees here, 40 of whom earn salaries of around $100,000 annually.

Two-thirds of the workers are scientists and researchers who hold advanced degrees of either a PhD or a master’s degree. About a third of the group is support staff.

“These would be some of the best scientific minds in the steel industry today,’’ Mittal Steel USA spokesman Dave Allen said Thursday.

Already, Mittal has a research and development center near the former Ispat Inland plant in East Chicago where 100 people work.

Local officials, who are emphasizing research as a plum economic development tool for the area, are thrilled by the announcement.

Posted by Marcia Oddi on Friday, April 22, 2005
Posted to Indiana economic development

Ind. Law - Judge tosses cases based on calls about drunken drivers

An interesting story today in the Gary Post-Tribune, written by Frank Wiget, reports:

VALPARAISO — Getting tips from the public may not be sufficient cause to pull over a suspected drunken driver, a judge said in tossing two Valparaiso cases.

While prosecutors are appealing Judge David Chidester’s ruling, one of the defense lawyers supports the decision.

Defense attorney Larry Rogers said Thursday someone with a gripe against another person could maliciously phone in a false tip.

Chidester rejected police evidence in two Valparaiso arrests. Both involved tips to police about suspected drunk drivers, including a 911 call from another motorist and a call from an off-duty police officer.

Porter County Deputy Prosecutor Cheryl Polarek said the prosecutor’s office is filing paperwork with the state attorney general’s office to appeal Chidester’s decisions to the Indiana Court of Appeals.

“I’m all for (an appeal),” Chidester said. “This could set better ground rules for the 911 calls.”

Posted by Marcia Oddi on Friday, April 22, 2005
Posted to Indiana Law

Ind. Gov't. - Indiana Gaming Commission fines Caesars $50,000

A story in the Louisville Courier Journal today by Grace Schneider reports:

INDIANAPOLIS -- The Caesars Indiana casino was fined $50,000 yesterday for violating state gambling laws -- including 10 instances in which marketing materials were mailed to people who had placed themselves on a list that excludes them from the state's riverboats.

The Harrison County casino turned itself in for the self-exclusion violations, which resulted in a $30,000 fine.

All riverboats must participate in the statewide exclusion program, which was established to help people who are trying to stop gambling.

The law includes a ban on sending marketing enticements, which generally encourage patrons to try a new game or register for a drawing, to anyone on the list.

The casinos also must adopt controls to ensure that excluded patrons aren't allowed to cash checks or receive payment for a jackpot. Casinos must remove an excluded person's name from marketing lists within 45 days of being notified that the individual has registered for the program.

One other riverboat, Blue Chip Casino in Michigan City, was fined $10,000 yesterday for several violations involving exclusion procedures.

The Indiana Gaming Commission issued the fines yesterday during a meeting in Indianapolis.

Meanwhile, in Illinois, the Chicago Tribune reports:
The Illinois Gaming Board said Thursday it had gotten rid of a politically connected lobbyist forced onto its payroll by the Blagojevich administration over the objections of board members who said they didn't need or want her.

But Linda Freveletti, sister-in-law of former state Democratic Party Chairman Gary LaPaille, won't have to make do without a state paycheck. The administration quickly installed her in another lobbying job, working for the Gaming Board's parent agency, the Department of Revenue.

Freveletti found herself in the middle of a political storm in February after gambling regulators publicly complained that she was foisted on them by Blagojevich's Revenue Department, which controls the board's purse strings.

The Gary Post-Tribune has this report today:
INDIANAPOLIS — The Indiana Gaming Commission will ask other state agencies to investigate the two East Chicago casino foundations and a private company receiving gaming dollars, it decided as it approved a license transfer that cleared the way for the riverboat’s sale to Resorts.

The decision came after a nearly two-hour public hearing, during which the City of East Chicago, under the new administration of Mayor George Pabey, asked the commission to accept a new local agreement with the city’s casino.

The agreement, passed by the City Council, would return to the city nearly $9 million in annual payments made by the casino to two private foundations and the private company, Second Century, run by partners with close ties to former East Chicago mayor Robert Pastrick.

The private company, run by former Democratic Party chairman Michael Pannos and East Chicago political powerbroker Tom Cappas, had not turned over data to the Center for Urban Policy and the Environment, which evaluates whether casinos have complied with their local agreements, for the Indiana Gaming Commission.

“I don’t understand why we cannot see the records. Why? Why?” asked Commissioner Ann Bochnowski.

But Gaming Commission member Donald Vowels asked whether the commission had the ability to analyze the local agreements, taking the more narrow view that the gaming commission only has the authority to regulate the riverboat, not the local agreement.

Indiana Gaming Commission Executive Director Earnest Yelton asked the commissioners for authority to ask the Indiana Department of Revenue and the state Board of Accounts to investigate how the roughly $80 million from the city’s local agreement has been spent over the last eight years, since the gaming commission approved the original local deal. The commission approved the request unanimously.

Posted by Marcia Oddi on Friday, April 22, 2005
Posted to Indiana Government

Environment - Stories today

"Environmental cleanup to preface Scribner work" is the headline to this story today by Ben Zion Hershberg in the Louisville Courier Journal. Some quotes:

With the first buildings demolished last week to make way for the Scribner Place complex in downtown New Albany, the next big step is an environmental cleanup that will include removing about 12,000 tons of contaminated soil.

The soil, roughly 500 truckloads of it, will go to a landfill where it will pose no danger, said Curt Jones, senior project manager for Shield Environmental Associates. * * *

Jones said most contamination at the Scribner Place site seems to be from the metalworking businesses that operated there early in the 20th century. Soil testing showed lead residue through much of the site, with concentrations near the old Double-7 building, Jones said. Lead is common in waste products of forges and foundries.

He expects about four feet of soil to be removed from much of the block, Jones said, with excavations to eight feet in some areas and 12 feet in the most-contaminated spots. He said he will test the soil as the work proceeds to make sure the contaminants are gone.

Preliminary estimates are that about 9,000 cubic yards of soil will be removed at a cost of about $500,000, Jones said. About 80 percent of the cost will be covered by federal grants.

More environment stories may follow later today.

Posted by Marcia Oddi on Friday, April 22, 2005
Posted to Environment

Thursday, April 21, 2005

Ind. Decisions - Court of Appeals posts one today

Richard A. Gard v. Henriann Gard (4/21/05 IndCtApp) [Family Law]
Crone, Judge

Case Summary. Richard A. Gard (“Husband”) appeals the trial court’s order on the motion to correct error filed by Henriann Gard (“Wife”) with respect to a dissolution decree. We reverse and remand.

Issue. We restate Husband’s issue as whether the trial court abused its discretion in granting Wife’s motion to correct error. * * *

Here, Husband’s premarital debts became marital property upon his marriage to Wife, and those debts were satisfied prior to dissolution with marital assets. In other words, Husband’s premarital liabilities and the marital assets used to satisfy those liabilities did not exist when Wife petitioned for dissolution. See footnote As such, the trial court improperly included these liabilities and assets in the marital estate in its original dissolution decree and in its order on Wife’s motion to correct error, respectively. We therefore conclude that the trial court abused its discretion in granting Wife’s motion to correct error.

Accordingly, we reverse and remand with instructions to revise the dissolution decree consistent with this opinion and to determine a just and reasonable division of the marital estate in light of that revision. We note that

[t]he division of marital property in Indiana is a two-step process. The trial court must first determine what property must be included in the marital estate.… After determining what constitutes marital property, the trial court must then divide the marital property under the presumption that an equal split is just and reasonable. Ind. Code § 31-15-7-5 (1998). If the trial court deviates from this presumption, it must state why it did so.
Thompson v. Thompson, 811 N.E.2d 888, 912-13 (Ind. Ct. App. 2004) (some citations omitted), trans. denied (2005).
Husband states that he does not challenge the current 60%-40% division of the marital estate, but given that $95,613.14 must be subtracted from its value, the trial court may determine that a different distribution is more just and reasonable. In this second step of marital property division, the trial court is not prohibited from considering Husband’s premarital debts and their satisfaction with marital assets as factors relating to an appropriate division of the marital assets existing at the time of final separation. See Ind. Code § 31-15-7-5 (providing nonexhaustive list of factors that court may consider in determining just and reasonable division of marital property).
Reversed and remanded.
RILEY, J., and ROBB, J., concur.

Posted by Marcia Oddi on Thursday, April 21, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts three today

Note: For those of you who read yesterday's comments, I'm using the Findlaw links today, which I hope are more stable than the 7th Circuit's have proven to be. But that doesn't resolve the thousands of past links the Court's change obliterated.

HILL, JOHN A. v. BAXTER HEALTHCARE (ND Ill.) [8 pp.]

Before MANION, EVANS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. This appeal concerns whether a federal trial judge had the authority to resolve an attorney lien dispute after the underlying case settled. In December of 2001, Indiana residents John Hill and wife Susan filed a diversity action in federal district court against manufacturers of the drug Heparin. Their complaint alleged that Mr. Hill’s use of Heparin following bypass surgery caused the loss of three limbs. The suit was filed by a Chicago attorney, David Fitzpatrick, only a week after the plaintiffs fired Neal Lewis, an attorney from Orland, Indiana. Lewis did not participate in the lawsuit.

In November of 2003, Lewis filed a lien action in Indiana state court seeking a share of any settlement or damages awarded in the plaintiffs’ federal lawsuit. Lewis alleged in his complaint that the Hills’ decision to dump him as counsel constituted a breach of contract and that Fitzpatrick tortiously interfered with their pact in wresting control over the case. Lewis contends that he put in 18 months of work on the case and deserves a piece of the pie.

The parties in the federal litigation reached settlements in June of 2004. On June 29, Judge Pallmeyer approved the settlement agreements and dismissed all of plaintiffs’ claims with prejudice, noting that the case was “fully and finally resolved.” Her order did not incorporate the settlement agreements nor did it expressly retain jurisdiction to enforce them.

Despite these settlements, the proceedings were far from over. On July 5, Lewis faxed to the defendants a notice of his attorney’s lien, along with a request asking them to withhold payment of the settlement funds until the Indiana proceeding regarding his claim was resolved. On July 8, the plaintiffs filed a “petition to quash and/or adjudicate attorney’s lien,” arguing that the lien should be quashed because Lewis failed to comply with the Illinois Attorneys Lien Act, 770 ILCS 5/1 (2004). The plaintiffs did not identify any authority for the district court to consider this request. The plaintiffs did provide Lewis with notice of the petition but did not serve him with a summons or seek to have him added as a party to the now-dismissed federal lawsuit. The file an amended complaint in order to add the settling drug companies as defendants in that action.

On July 15, the district court granted the plaintiffs’ petition to quash the lien: [omitted] That is all the order said. The court did not specify its authority for entering such an order. {Etc.] * * *

Accordingly, the district court’s orders issued on July 15, August 6, and August 12 are VACATED, and the case is REMANDED2 with instructions for the court to dismiss the plaintiffs’ requests to quash the lien. Costs are awarded to Mr. Lewis.

WEST, EDWARD v. ORTHO-MCNEIL PHARM (ND Ill) [8 pp.]

Before RIPPLE, EVANS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. In 1997, just a month before his 60th birthday, Edward West, an African-American male, was hired by a company called Innovex. Innovex provided pharmaceutical companies, like the defendant Ortho-McNeil Pharmaceutical Corporation (OMPC), with contract sales representatives. Two years later, in 1999, OMPC hired West (and 10 other Innovex employees) as a direct sales representative of the company. OMPC terminated West in July of 2000 for, it claimed, violations of company policies. West thought the termination was caused by his race and age. * * *

The evidence, if true, clearly shows that Pascale was biased. Other evidence shows that he informed Taylor of West’s apparent violation of company rules, that those rules were also violated by others, and that Taylor recommended firing West. It may be a close question whether West—who as we noted was proceeding pro se—was able to link these facts so as to enable a reasonable jury to find discrimination. But because a close question should go in West’s favor, we find the case should have gone to the jury for its determination. On this record, we cannot say that no reasonable jury could find for West.

Accordingly, the judgment of the district court is VACATED and the case is REMANDED for a new trial. Costs are awarded to Mr. West.

USA v. BANKS, RICKEY E. (ND Ill.) [23 pp.]

Before FLAUM, Chief Judge, and COFFEY and KANNE, Circuit Judges.
KANNE, Circuit Judge. In March 2002, a jury convicted Rickey Earl Banks of possession with intent to distribute cocaine in federal district court. Banks was sentenced to 97 months in prison pursuant to the Sentencing Guidelines. He directly appeals the conviction on five different grounds. We review the sentence sua sponte in light of the Supreme Court’s recent decision on the constitutionality of the Sentencing Guidelines. For the reasons stated herein, we affirm the conviction and order a limited remand to the district court to determine whether resentencing is warranted.

Posted by Marcia Oddi on Thursday, April 21, 2005
Posted to Ind. (7th Cir.) Decisions

About this blog - ILB expected to end three-year-run this month

My plan is to stop updating the Indiana Law Blog the end of this month, after a three-year run with barely a day missed, and most days averaging about seven entries.

I love doing the blog, but it is taking up far too much of the time that I need to spend: (1) producing income; and (2) finding new clients for my "information solutions" business.

Please contact me for legal and technical editing and publishing, specialized databases and web solutions, and for management of all manner of "special projects."

Posted by Marcia Oddi on Thursday, April 21, 2005
Posted to About the Indiana Law Blog

Environment - Stories today

"Cinergy officials hope haze problem solved" is the headline to this story today in the Evansville Courier& Press. Some quotes:

The acidic blue haze that sent residents of Mount Carmel, Ill., inside to escape burning eyes and coughing fits last summer should not be a problem this year, hope officials at the Gibson County, Ind., power plant that caused it.

When Cinergy begins operating the pollution controls at its Gibson Station power plant near Princeton, Ind., again this May, company officials believe they will have a way of keeping the problem from happening again. * * *

Faulkner said the solution to the problem required "an incredible amount of work in a short period of time."

The project required more than 22 miles of power and control cables and more than five miles of piping. It involved the construction of a system to inject environmentally neutral materials such as sodium bisulfate (soda ash) to the gas stream leaving the plant's smokestack.

"Ethanol benefits questioned: Homegrown fuel might worsen Louisville's air pollution" is the headline to this lengthy story today in the Louisville Courier Journal. Some quotes:
Ethanol, a fuel that's backed by state and federal governments and viewed as a boon to corn farmers in the Midwest and South, may make it harder to breathe in Louisville this summer.

While governors in more than 25 states, including Kentucky and Indiana, tout it as a way to make gasoline burn cleaner, there's new evidence ethanol can worsen some types of pollution linked to damaging health effects -- namely ozone and fine particles.

And that could make it harder for cities like Louisville, where it already is being used, to meet air standards.

"There is growing evidence that when used in the summer with reformulated gasoline, ethanol actually creates more smog and fine-particle soot," said Frank O'Donnell, a longtime clean air advocate in Washington, D.C. "Ethanol has been oversold as a clean fuel."

"The sordid tale of a desperate penguin" is the title to a really interesting story today in the Chicago Tribune that I would retitle "Story of a spunky penguin raising baby (fledgling?) on her own."

Posted by Marcia Oddi on Thursday, April 21, 2005
Posted to Environment

Ind. Law - Two family law firms in Muncie featured

The Muncie Star-Press today has two stories by Nick Werner featuring local family law practices.

The story "Law is family business for the Quirks" begins:

The downtown law firm of Quirk, Rivers and Hunter presents a misleading, or at least understated, name. More realistically, the firm should be called Quirk, Quirk, Quirk, Quirk, Quirk, Rivers and Hunter.

Jack Quirk, who opened the business 25 years ago with his partner Geoff Rivers, has since taken on daughters, Teresa and Ana, sons, John and Michael, and son-in-law Joe Hunter.

"I don't think I'd want to practice law without having my family around," Ana Quirk said.

Jack's wife, Linda, also works in the office, taking care of billing for the law firm. Another daughter, Megan, starts law school April 23.

The second story, "Three Dunnucks share law practice" begins:
Like the Quirks, the Dunnuck family has produced a small team of attorneys. Donald Dunnuck works with his son, Jake, and daughter, Amanda, at Dunnuck and Associates on Walnut Street.

Donald credits an emphasis on education and fatherly involvement for raising children who followed in his career path. "If you're going to emulate someone, it's often you're father," he said.

Donald's three other children, however, work in other fields, and Donald jokingly referred to them as the sensible ones.

Posted by Marcia Oddi on Thursday, April 21, 2005
Posted to Indiana Law

Ind. Law - Legislators go slowly on issue of ID theft

Not this year please. Indiana businesses convince lawmakers to "go slow" on a proposal to require that businesses inform people if their personal information is stolen from the businesses' computers.

This story today in the Indianapolis Star begins on a far more sympathetic note:

Key identity theft legislation in the General Assembly likely will be put off for a year after business interests were startled by an amendment that would have forced government agencies and businesses to tell people if their personal information were stolen from computers.
Later in the story:
The proposed amendment is modeled after a 2004 California statute that forces companies to notify people when Social Security numbers, driver's license numbers or other personal information is stolen.

Earlier this month, a similar statute prompted Dayton, Ohio, database giant LexisNexis to disclose that the data of 310,000 individuals had been stolen.

Indiana is one of 28 states considering legislation similar to the California statute, according to the National Conference of State Legislatures, a Denver-based bipartisan organization serving legislators and their staffs.

Consumers are fed up with a barrage of security breaches, said Chris Hoofnagle, a director of the Electronic Privacy Information Center, a civil liberties-oriented nonprofit funded by groups such as the Ford Foundation and billionaire George Soros' Open Society Institute. "They want a California notice bill on steroids," Hoofnagle said. "There is kind of a competition among the states to pass the strongest consumer notice bill possible."

Walorski's amendment, a virtual copy of the California statute, was to be inserted in a Senate bill that would require computer crimes affecting Hoosiers be tried in Indiana.

Posted by Marcia Oddi on Thursday, April 21, 2005
Posted to Indiana Law

Wednesday, April 20, 2005

Ind. Decisions - 7th Circuit makes linking difficult! And worse!

Howard Bashman of How Appealing has this afternoon pointed out here a real problem for those trying to follow the 7th Circuit online. Each current day's cases now have a link that is only "temporary." That means if you click on it the following day, you get a "page not available" notice.

Worse, the temporary and permanent links have little in common so they are not readily reconfigured.

Much worse, I have been in contact with Howard and he now writes:

Also annoying, as I've now just discovered, is that all links to Seventh Circuit rulings from before the redesign are no longer any good either. There's a project for you -- changing all the old links into new, working links. This disappoints me greatly, as well, because the Seventh Circuit's web site allowed opinion access over such a great length of time, and now none of those links work any more. So much for progress.
This is incredibly short-sighted on the part of the 7th Circuit! This means, for instance, that if you go to the right-hand column of this blog and click on "Archives - 7th Circuit Decisions" you will be able to read all the summaries of 7th Circuit opinions I have done for this blog, BUT NONE OF THE LINKS WORK ANY LONGER!

Posted by Marcia Oddi on Wednesday, April 20, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - State Supreme Court suspends law license of former deputy prosecutor

Somewhat oddly, the AP today has a story about a 3/31/05 ruling of the Indiana Supreme Court, discussed in this earlier ILB entry.

Posted by Marcia Oddi on Wednesday, April 20, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court posts one today

Maurice Smith v. State of Indiana (4/20/05 IndSCt) [Criminal Law & Procedure]
Sullivan, Justice

Defendant Maurice K. Smith’s sentence in this case was increased by 10 years because the trial court found him to be a “repeat sexual offender.” He contends that the Indiana and United States Constitutions require a jury determination of repeat sexual offender status before such an enhancement may be imposed. We affirm the trial court’s decision. Smith’s rights under Article I, Section 19, of the Indiana Constitution are not implicated because the Legislature has not committed the determination of repeat sexual offender status to the jury. And the federal constitutional rule that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury” does not apply to “the fact of a prior conviction.” The only facts at issue in determining repeat sexual offender status are defendant’s prior convictions. * * *

Conclusion. Finding Indiana Code Section 35-50-2-14 to be constitutional under both the Indiana and United States Constitutions, and having summarily affirmed the decision of the Court of Appeals as to the issue referred to in Footnote 1, we affirm the judgment of the trial court.

Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.

Posted by Marcia Oddi on Wednesday, April 20, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals posts six today


Michael Weis v. State of Indiana
(4/20/05 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge

* * * Moreover, even if we found that the trial court improperly engaged in judicial fact-finding, an improper denial of a defendant’s Sixth Amendment right to have a jury determine all facts legally essential to his or her sentence is subject to a harmless-error analysis. See Booker, 125 S. Ct. at 769; see also Holden v. State, 815 N.E.2d 1049, 1060 (Ind. Ct. App. 2004), trans. denied. A denial of the defendant’s Sixth Amendment right constitutes harmless error where the evidence supporting the conviction or enhancement is so convincing that a jury could not have found otherwise. See Averitte v. State, No. 49A05-0405-CR-276, slip op. at 8 (April 8, 2005).

Based upon Weis’s own testimony, we believe that no jury could have found that Weis, as J.S.’s stepfather, was not in a position of trust. Accordingly, to the extent that the trial court erred in making this finding itself, any such error is harmless. * * *

Conclusion. Based upon the foregoing, we find that the trial court did not err in admitting certain evidence, and that Weis has not demonstrated fundamental error. Further, we find that the State did not commit prosecutorial misconduct, and the evidence is sufficient to support the convictions. Finally, the trial court did not err in enhancing Weis’s sentence. Affirmed.
SULLIVAN, J., and MATHIAS, J., concur.


James & Beulah Ross v. Larry Olson
(4/20/05 IndCtApp) [Medical Malpractice]
Bailey, Judge
Appellants-Plaintiffs James E. Ross (“Ross”) and Beulah M. Ross (collectively, “the Rosses”) appeal a judgment in favor of Appellees-Defendants Larry D. Olson, M.D. (“Dr. Olson”) and John B. Chambers, M.D. (“Dr. Chambers”), upon the Rosses’ medical malpractice claim. We affirm.

Issues. The Rosses present three issues for review: [1] Whether the trial court should have instructed the jury on the doctrine of res ipsa loquitur; [2] Whether the trial court erroneously excluded testimony as to the definition of the term “iatrogenic injury;” and [3] Whether the trial court erroneously excluded Plaintiff’s Exhibit 13. * * *

Conclusion. The doctrine of res ipsa loquitur is inapplicable; thus, the trial court properly refused the Rosses’ res ipsa loquitur instruction. Moreover, the trial court’s evidentiary rulings were within its discretion. Affirmed.
SULLIVAN, J., and MATHIAS, J., concur.

Scott Rector v. State of Indiana (4/20/05 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge
Following a jury trial, Appellant, Scott D. Rector, was convicted of one count of Burglary as a Class C felony Sand was determined to be an habitual offender. Upon appeal, Rector challenges his adjudication as an habitual offender, presenting two issues for our review: (1) whether the trial court erred in removing a juror after deliberations had begun in the habitual offender phase of the trial, and (2) whether the trial court erred in refusing to give the jury an instruction requested by Rector. We affirm the judgment entered upon the habitual offender determination. * * *

The judgment of the trial court is affirmed.
BAILEY, J., and MATHIAS, J., concur


Ronnie Miller v. State of Indiana
(4/20/05 IndCtApp) [Criminal Law & Procedure]
Crone, Judge
Issues. Miller presents one issue for our review, which we restate as whether the trial court abused its discretion by ruling that the State may conduct discovery regarding his mental capacity. On cross-appeal, the State presents one issue for our review, which we restate as whether the trial court’s proposed preliminary instruction on the issue of Miller’s mental retardation would, if presented to the jury, result in an abuse of discretion. * * *

In sum, we affirm the trial court’s order granting the State’s motion to interview and examine Miller, we reverse the trial court’s order proposing a preliminary instruction about its determination of Miller’s mental retardation, and we remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
RILEY, J., and ROBB, J., concur.


Adeline Margaret Hatten v. Emerson Richard Hatten
(1/28/05 IndCtApp) [Family Law]
[Initially NFP]
Robb, Judge
The marriage of Adeline Margaret Hatten (“Wife”) and Emerson Richard Hatten (“Husband”) was dissolved by the trial court and the parties’ assets were divided. The trial court awarded to Husband the entirety of a Merrill Lynch account funded with money Husband inherited from his mother. Wife now appeals. We reverse and remand. * * *

Conclusion. The trial court abused its discretion in awarding the entire value of the Merrill Lynch account to Husband on the basis that the inherited property was “separate and distinct” from the marital property. We therefore reverse the trial court’s property division as to the Merrill Lynch account and remand for an equal division of this account between Husband and Wife. Reversed and remanded.
KIRSCH, C.J.,concurs.

BAKER, J., dissents with opinion. Because I believe that the trial court sufficiently set forth its reasoning for deviating from the presumption of an equal division of the marital property, I respectfully dissent.

The trial court is authorized by Indiana Code section 31-15-7-5 to deviate from the presumptive equal division if it states its reasons for the deviation. Chase v. Chase, 690 N.E.2d 753, 756 (Ind. Ct. App. 1998). One of these reasons is “[t]he extent to which the property was acquired by each spouse . . . through inheritance or gift.” I.C. § 31-15-7-5. In its order, the trial court explained that Husband’s severance pay and portions of his inheritance had been used for the benefit of the family as a whole. However, Wife’s inheritance had been used for Wife’s children from a previous marriage only. Thus, Wife had already enjoyed the benefit of her own inheritance as well as Husband’s inheritance. Moreover, Husband had kept the account separate for many years. This is sufficient to rebut the presumption of an equal division. See Keller v. Keller, 639 N.E.2d 372 (Ind. Ct. App. 1994), trans. denied. I therefore vote to affirm the trial court in its finding that what remained of Husband’s inheritance was Husband’s alone.

Adeline Margaret Hatten v. Emerson Richard Hatten (4/20/05 IndCtApp) [Family Law]
[PETITION ON REHEARING - FOR PUBLICATION]
Robb, Judge
* * * Husband now petitions for rehearing, alleging a factual error in our opinion leading to a misunderstanding of the basis on which the trial court’s award was made. We grant the petition for rehearing for the sole purpose of addressing Husband’s contention, but reaffirm our opinion in all respects. * * *
KIRSCH, C.J., concurs.

BAKER, J., concurs in part and dissents in part with opinion. join my colleagues in voting to grant the petition for rehearing to correct any factual error. Moreover I continue to believe the trial court sufficiently set forth its reasoning from the presumption of an equal division of the marital property as I stated in my previous dissent.

Posted by Marcia Oddi on Wednesday, April 20, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts three today

Midlock, Andrew v. Apple Vacations (CD Ill.) [9 pp. - civil]

Before POSNER, MANION, and WOOD, Circuit Judges.
POSNER, Circuit Judge. William Cremer, the lawyer for all but one of the defendants in this tort suit, appeals from an order fining him $5,000 and directing him to reimburse the plaintiffs $3,285.28 for attorneys’ fees. The suit had been filed in a state court in Joliet, Illinois, but Cremer, acting on behalf of one of the defendants whom he represented, removed the case to the federal district court in the Northern District of Illinois, the district in which Joliet is located. * * *

Cremer told the district court that his clients had insisted that he remove the case to federal court regardless of whether there was any legal basis for removal. That was a dreadful excuse. A lawyer who pursues frivolous litigation cannot defend himself by arguing that his client made him do so. A lawyer is under a legal duty not to yield to such importunings, and he opens himself to sanctions if he does. [some cites omitted] “Telling would-be litigants that the law is against them is an essential part of a lawyer’s job.” Bailey v. Bicknell Minerals, Inc., 819 F.2d 690, 693 (7th Cir. 1987). Cremer was properly sanctioned for conducting frivolous litigation. AFFIRMED.

USA v. Miller. Duane L. (SD Ind., David F. Hamilton, Judge) [11 pp. - criminal]

Before CUDAHY, EASTERBROOK, and WILLIAMS, Circuit Judges.
CUDAHY, Circuit Judge. After an undercover sting operation involving numerous purchases of the drug Ecstasy, the Marion County Sheriff’s Department arrested Duane Miller and an accomplice during a buy-bust operation. Miller was indicted for one count of conspiracy to distribute Ecstasy and two counts of distribution, and was convicted by a jury of conspiracy and one count of distribution. Miller appeals his conviction on four grounds, contending that there is insufficient evidence to support his convictions, that the district court abused its discretion by not allowing him to explain his request for new counsel before denying that request, that the district court’s enhancement for obstruction of justice violated his Sixth Amendment rights under United States v. Booker, 125 S.Ct. 738 (2005) and that the district court erred by not considering him for a reduction for his minor role in the offense. Though we find that there was sufficient evidence to support Miller’s convictions and that the district court did not abuse its discretion in denying his request for new counsel, we remand to the district court for a determination whether Miller should receive a role in the offense reduction. * * *

In summary, we AFFIRM Miller’s conviction and the district court’s denial of Miller’s request for a continuance. We REMAND this case to the district court for resentencing to allow it to determine whether, under the circumstances presented and under United States v. Rodriguez-Cardenas, Miller merits a reduction for an allegedly minor role in the offense.

USA v. Skoczen, Roman (ND Ill.) [21 pp. - criminal]

Before FLAUM, Chief Judge, and MANION and WOOD, Circuit Judges.
WOOD, Circuit Judge. On April 18, 1995, the police arrested Roman Skoczen along with several of his associates. Skoczen was accused and later convicted of conspiring to possess goods stolen from an interstate shipment and conspiring to transport stolen goods in interstate or foreign commerce. Skoczen appeals from a number of issues stemming from his trial and sentencing. We affirm Skoczen’s convictions. With respect to his sentence, we follow the limited remand procedure outlined in United States v. Paladino, Nos. 03-2296 et al., 2005 WL 435430 (7th Cir. Feb. 25, 2005), so that the district court may determine in the first instance whether the new discretionary sentencing regime established in United States v. Booker, 125 S.Ct. 738 (2005), affects the sentence that the court wishes to impose. * * *

We AFFIRM the judgment insofar as it relates to Skoczen’s convictions. With respect to his sentence, we order a LIMITED REMAND to the district court for further proceedings consistent with Paladino and this opinion. It will be up to the district court to indicate whether it is still inclined to impose the same sentence or if it believes that a different sentence would be the reasonable one to impose, in light of all relevant sentencing considerations (including but not limited to what we have said about its applications of the Guidelines). Pending the outcome of the limited remand, this court will retain jurisdiction over the appeal.

Posted by Marcia Oddi on Wednesday, April 20, 2005
Posted to Ind. (7th Cir.) Decisions

Environment - EPA cites Indiana plant emissions

"EPA cites Indiana plant emissions: Toxic chemical leaked for years" is the headline to this story, comple with maps, by James Bruggers in the Louisville Courier Journal. Some quotes:

A Corydon industrial plant may have illegally released into the air tens of thousands of pounds of a toxic chemical associated with nervous-system damage and cancer each year between 1998 and 2003, the U.S. Environmental Protection Agency charged yesterday.

Daramic Inc., which makes thin plastic membranes that allow car batteries to work and recharge, employs about 110 people in Harrison County.

The air pollution permit for the plant calls for allowing only 5 percent of its trichloroethylene to escape, but the EPA said 40 percent to 91 percent got away during those years. The allegations are contained in a finding-of-violation document from the agency's Chicago office.

As recently as 2002, the company led the nation in industrial emissions of the chemical with nearly 1.1 million pounds, the vast majority of it from leaks, according to the EPA's Toxics Release Inventory. That is five times more than the second-ranked company.

The company has 30 days to respond to the allegations, which EPA officials described as preliminary. The agency could fine the company as much as $27,500 to $32,500 a day during the six-year period, said William Omohundro, an EPA spokesman.

Posted by Marcia Oddi on Wednesday, April 20, 2005
Posted to Environment

Law - More on Merck v. Integra arguments today

Updating yesterday's ILB entry, How Appealing has links here to several stories about today's oral arguments before the U.S. Supreme Court in Merch v. Integra. Here are some quotes from an LA Times story:

The case has split the biotechnology industry, which includes a handful of drug giants and hundreds of smaller, research-focused companies.

Siding with Integra are small biotech companies that produce and sell equipment and other products used in drug research, including Applera Corp. and Invitrogen Corp. They worry that big drug companies could run all over their patents if the lower court ruling is overturned.

Two of the largest biotechs, Genentech Inc. and Biogen Idec Inc., are aligned with Merck.

At the center of the dispute is a federal law known as Hatch-Waxman, which was passed in 1984 to foster drug development. The law granted a "federal exemption" from patent laws for research needed to obtain FDA approval of a drug. The law has been used to shield generic drug companies from patent infringement suits while they prepare to bring knock-off drugs to market.

Merck claims that the Hatch-Waxman exemption should also apply to its research, but a federal jury disagreed, awarding $15 million in damages to Integra, which an appeals court reduced to $6.4 million in 2003.

In upholding the verdict, the appeals court said that Merck and Scripps used the peptide in experiments that weren't needed to obtain FDA approval of the brain-cancer drug. The court said the exemption applied only to drugs in clinical trials, while Merck was using the peptide in laboratory studies.

Posted by Marcia Oddi on Wednesday, April 20, 2005
Posted to Biotech | General Law Related

Tuesday, April 19, 2005

Ind. Decisions - Court of Appeals posts three today

Mary L. Cheever-Ortiz v. State of Indiana (4/19/05 IndCtApp) [Criminal Law & Procedure]
Kirsch, Chief Judge

Mary Cheever-Ortiz contends that the trial court erred in denying her motion to suppress evidence seized from her residence pursuant to a search warrant, resulting in her conviction for dealing in a schedule II controlled substance as a Class B felony and dealing in marijuana in excess of ten pounds, a Class C felony. On appeal, Cheever-Ortiz presents the following restated issue for our review: Whether the search warrant was based upon probable cause. * * *

In deciding whether to issue a search warrant, the task of the issuing judge is to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Query, 745 N.E.2d at 771. Given the information presented to Judge Van Valer Shilts, we agree that there was a substantial basis to determine that probable cause existed to issue a search warrant for Cheever-Ortiz’s residence.
Affirmed.
NAJAM, J., and VAIDIK, J., concur.

Ty Schrenger v. Caesars Indiana (4/19/05 IndCtApp) [Contracts; Statutory Construction]
Sullivan, Judge
Appellant-Defendant, Ty J. Schrenger, appeals from the trial court’s grant of summary judgment in favor of Appellee-Plaintiff, Caesars Indiana (“Caesars”), in Caesars’ action seeking to recover $25,000 in credit it had extended to Schrenger. Upon appeal, Schrenger presents two issues, which we restate as: (1) whether Indiana Code § 34-16-1-1 prevents Caesars from collecting on the debt, and (2) whether Caesars was unjustly enriched by the trial court’s judgment. Caesars presents one issue upon cross-appeal: whether the trial court erred in not awarding it treble damages. We affirm. * * *

The parties disagree over how we should construe two statutes, Indiana Code § 34-16-1-1 and Indiana Code § 4-33-9-15. For purposes of clarity and brevity, we will refer to the first statute as “Section 1” and the latter as “Section 15.” Section 1 effectively forbids the enforcement of gambling debts, but Section 15 specifically authorizes riverboat casino operators to extend credit to patrons for the purpose of wagering. * * *

We recognize that in several states which have legalized some forms of gambling, the statutes which prohibit collection of gambling debts have been amended to specifically exclude debts incurred while engaged in legal gambling. * * * While we acknowledge that Section 15 does not explicitly refer to Section 1, our holding is that it effectively creates an exception for riverboat casino debts incurred legally pursuant to Section 15. Given our interpretation of these statutes, we cannot conclude that, for the reasons argued by Schrenger, the trial court erred in granting summary judgment. * * *

The judgment of the trial court is affirmed.
BAILEY, J., and MATHIAS, J., concur.

Charles Edward Gantt v. State of Indiana (4/19/05 IndCtApp) [Criminal Law & Procedure]
Kirsch, Chief Judge
Charles Edward Gantt appeals his conviction following a jury trial for child molesting See footnote as a Class A felony, raising the following issue for review: whether the trial court erred in responding to a question from the jury after it had begun its deliberations. We reverse. * * *

We find that the trial court’s instruction was an erroneous statement of the law and invaded the province of the jury to determine credibility and accept or reject evidence as it sees fit. When two witnesses give contradictory accounts, it is not true that the jury must believe one or the other. The jury may choose to believe neither witness, believe aspects of the testimony of each, or believe the testimony but also believe in a different interpretation of the facts than that espoused by the witnesses, among other possibilities. The trial court’s instructions may have led the jury to believe that it was required to adopt wholesale one witness’s account over another’s. This is an incorrect statement of the law. In light of our conclusion that the trial court’s instruction was erroneous, we must next determine whether the error was harmless.

We will not overturn a defendant’s conviction if a trial court’s error was harmless. Thomas, 774 N.E.2d at 36 (citing Ind. Trial Rule 61). Harmless error is an error that does not affect the substantial rights of a party. Id.

In this case, the evidence consisted primarily of the two accounts of the evening by C.G. and by Gantt. The jury’s focus in deliberations was necessarily the credibility of these two witnesses. Under the circumstances, we cannot conclude that the trial court’s erroneous instruction was harmless. Therefore, we must reverse and remand for a new trial. Reversed.
NAJAM, J., and VAIDIK, J., concur.

Posted by Marcia Oddi on Tuesday, April 19, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts five today

USA v. Vitrano, Thomas P. (ED Wis.) [9 pp. - criminal]

USA v. Lewis, DeWayne (ND Ind., William C. Lee, Judge) [7 pp. - criminal]

Before EASTERBROOK, MANION, and ROVNER, Circuit Judges
EASTERBROOK, Circuit Judge. A jury convicted Dewayne Lewis of possessing a firearm, despite a felony conviction that made it unlawful for him to carry a gun. * * *

Although it is tempting to treat the district judge’s use of the affidavits as a trifle—after all, robbery always is a “crime of violence”—the line between categorical and person-specific classification is important. Sentencing in a felon-inpossession case must not turn into a reprise of the earlier prosecution, for practical reasons as well as the constitutional considerations limned in Part III of Shepard. The district judge may well have used the affidavit’s allegations when deciding where in the range to sentence Lewis, which would misconceive the nature of a recidivist enhancement. What matters is the fact of conviction, rather than the facts behind the conviction. The United States does not argue that it would have been appropriate to use these affidavits to decide where in the range to sentence Lewis, if they were not appropriately used to classify his prior conviction. The conviction is affirmed. The sentence is vacated and the case remanded for resentencing consistent with this opinion. When resentencing Lewis, the judge will treat the guidelines as advisory, per Booker’s remedial holding, and impose a reasonable sentence.

USA v. Cunningham, Thomas (SD Ind., David F. Hamilton, Judge) [15 pp. - criminal]

Before COFFEY, EASTERBROOK and EVANS, Circuit Judges.
COFFEY, Circuit Judge. Thomas Cunningham was convicted after a jury trial of one count of producing child pornography in violation of 18 U.S.C. § 2251(a) and sentenced to a term of 210 months’ imprisonment. On appeal, Cunningham claims that: 1) his conviction should be reversed because the government failed to lay a proper foundation for the admission into evidence of the photographic prints reproduced from the digital files on his computer; and 2) his sentence should be vacated because the trial judge’s decision to impose an upward departure was based on factual findings determined by the judge and not a jury in violation of his Sixth Amendment right to a jury trial, or in the alternative, because the upward departure imposed by the court was unreasonable. We affirm his conviction and sentence.

USA v. Turcotte, James R. (ND Ill.) [37 pp. - criminal]

Rodrigue, Linda v. Olin Employees (SD Ill.) [34 pp. - civil]

Posted by Marcia Oddi on Tuesday, April 19, 2005
Posted to Ind. (7th Cir.) Decisions

Courts - More on "Blackmun Clerks Had Too Much Power, Says Historian"

Updating yesterday's ILB entry describing the article, here, thanks to Howard Bashman of How Appealing, is the link to the actual article by David Garrow, titled, inelegantly, "The Brains Behind Blackmun."

Posted by Marcia Oddi on Tuesday, April 19, 2005
Posted to General Law Related

Ind. Gov't. - The scoop on legislative conference committees

Michele McNeil of the Indianapolis Star has a story today headlined: "In the final days, lawmakers hash out bills: General Assembly starts its conference committees: mostly private, a little scary." Some quotes:

These final 10 days of the General Assembly have been called fast-paced, confusing -- even scary. Enter the legislative world of conference committees, where groups of four lawmakers meet to decide the fates of hundreds of ideas.

The drama kicked into high gear Monday with six meetings on proposals ranging from daylight-saving time to cloning -- meetings that showed just how unpredictable making laws can be.

The meetings lasted from 10 minutes to two hours. In one, a citizen fainted while he was testifying on daylight-saving time. Another featured the temporary demise of a proposal to create an inspector general, and a promise of revival. One meeting was canceled five minutes after it was supposed to start.

These meetings are mostly for show -- as much of the real negotiating will take place in private.

A conference committee is made up of four legislators, called conferees -- a Democrat and Republican from the House and the same from the Senate, all assigned by legislative leaders. There are also advisers, who serve as understudies in the legislative drama. Sometimes, if a legislative leader doesn't agree with a conferee, he'll ask an adviser to take over.

The public isn't given much advance notice of meetings, which must be announced an hour beforehand in the Senate, two hours in the House. The public has to know where to look, too. The meetings are posted on a blackboard on the second floor of the Statehouse.

The goal for conference committees is to obtain four signatures on a compromise report -- one from each of the conferees. However, the job doesn't stop there. The final version of the bill must pass each chamber again. All the while, the clock is ticking toward April 29, the deadline set in law by which the legislature must adjourn.

Posted by Marcia Oddi on Tuesday, April 19, 2005
Posted to Indiana Government

Ind. Gov't. - Local legislative meetings scheduled during the session praised

The Fort Wayne Journal Gazette has an editorial today praising local legislative meetings scheduled during the session, and asking that they:

become a routine exercise for House and Senate members alike. The political process is improved when it includes voices from the grassroots level.

House Speaker Brian Bosma was host in Fort Wayne on Friday to the GOP caucus’ sixth and final town meeting. He and nine lawmakers from northeast Indiana listened patiently to two hours of testimony from area residents concerned with everything from Medicaid cuts to the loss of video slots revenue by veterans’ organizations. The opportunity to be heard was welcome, even if the session’s late date means the testimony is likely to have little if any effect on current legislation. And even if they didn’t hear responses they would have liked, area residents clearly appreciated. * * *

If the lawmakers were less helpful with the tough questions about providing for needy Hoosiers, they were at least respectful and interested. The town meeting should become a regular feature of the session. And while it was a bonus to have the House speaker in attendance, northeast Indiana residents would still be well served by meeting with their own delegation, preferably earlier in the session.

As one area resident observed, Indianapolis sometimes seems very far away. Bringing it closer to home is good politics and good policy.

Posted by Marcia Oddi on Tuesday, April 19, 2005
Posted to Indiana Government

Ind. Law - Battle over medical files goes to court

"Battle over medical files goes to court" is the headline to a front page story today by Dick Walton in the Indianapolis Star. Some quotes:

The clash between the state's duty to protect children from abuse and a patient's right to privacy moved to a Marion County courtroom Monday, drawing Indiana into a national debate on government access to medical records.

Planned Parenthood of Indiana filed suit last month to block the Indiana attorney general from obtaining documents concerning patients younger than 14.

Deputy Attorney General Thomas Fisher argued Monday that his office needs those records to make sure those patients have not been abused. In Indiana, children younger than 14 who have had sex are considered victims of sex crimes. The state says clinics have an obligation under the law to report any such mistreatment they discover.

"Children are best served by disclosure," Fisher told Marion Superior Court Judge Kenneth Johnson as the case had its first court airing.

But Kenneth Falk, the attorney representing Planned Parenthood, said the state's request would have a chilling effect on minors' willingness to seek reproductive health care.

"These are extraordinarily private records of extraordinarily sensitive persons," Falk said before the hearing. * * *

Falk, who is legal director of the Indiana Civil Liberties Union, said his research into Medicaid fraud units in other states found no precedent for seizing medical records in what he has called this kind of "fishing" expedition.

Falk said that besides violating citizens' right to privacy, the records the government seeks would shed little light on whether Planned Parenthood is reporting cases to Child Protection Services or to law enforcement. State law, Falk says, requires only that a report of suspected abuse be made -- not that it be made in writing.

He argued that if the state is permitted to proceed with seizing medical records, any physician who treats young Medicaid patients could be subject to the same treatment.

"This is not a case about child abuse," Falk said. "It's a case about keeping government within its boundaries."

A sidebar to the story lists earlier efforts, in the states of Texas and Kansas, and on the federal level by then-Attorney General John Ashcroft.

Earlier ILB entries include this one from March 24th titled "Local dispute over patient records makes national news."

Posted by Marcia Oddi on Tuesday, April 19, 2005
Posted to Indiana Law

Monday, April 18, 2005

Law - Merck v. Integra to be argued before the Supreme Court this Wednesday

This ILB entry from June 20, 2003 is titled "Construction of the "safe harbor" of 35 U.S.C. § 271(e)(1).," and discusses the U.S. Court of Appeals for the Federal Circuit ruling 6/6/03 in the case of Integra LifeSciences v. Merck.

Nearly two years later, on this Wednesday, the U.S. Supreme Court will hear oral arguments in the case. The UK's Financial Times writes today:

The US Supreme Court could be about to rewrite the rules of innovation in America. A patent case this week could profoundly affect not only those who take or make American drugs but also the innovation economy.

Those are the claims made by drug and biotechnology companies lobbying hard to influence the outcome of Merck v Integra. The case tests the basic legal compromise that has fostered 20 years of drug creation in the US: that drug companies should be allowed to use other companies' patents for free when their goal is to bring new drugs to market.

But the justices are also being urged to examine a more fundamental bargain, one that supports creativity in fields well beyond pharmaceuticals: the notion that society benefits when scientific knowledge is freely shared with those who use it to invent something new. * * *

Last month, it was copyright and file-sharing. This month the issue is patent law and drug research. But the challenge is broadly the same: how to ensure that creators enjoy enough legal protection to encourage them to create without stifling those who want to build on their inventions.

The case Merck v Integra poses the question this way. Should Merck KGaA, a German drug company, be allowed to use the patents of tiny Integra LifeSciences, a medical technology company, to look for drugs that could help fight cancer?

A 20-year-old federal law says Merck can use the material for free as long as the use is "reasonably related" to getting a drug approved by the Food and Drug Administration. But does the right to infringe patents stretch back to the earliest explorations or just to final clinical testing?

A federal jury sided with Integra and awarded $15m in damages against Merck. A federal appeals court agreed, ruling that the main point of the research exemption was to give generic drug makers time to get their products ready to introduce right after a patent expires on a proprietary drug - not to immunise every drug maker for all experimental activity.

Big pharma was outraged and drug makers predict dire consequences if the ruling is upheld. A brief from Eli Lilly, Wyeth and Pfizer, which support Merck, said "Patients will be deprived of timely access to new, safer, more effective drugs; promising drugs to treat unmet medical needs will never be developed; and drug development activities along with valuable American jobs will be exported to countries having more favourable legal environments".

The US government, also on Merck's side, says there is "no question" the ruling would "restrict significantly the development of new drugs". And the AARP, the lobby group for older Americans, says favouring patent protection in this case is against the public interest.

But the patent owners - biotech companies that develop the tools used to discover new drugs - say the pharmaceutical companies are just trying to cheat them out of their fair share of the reward for bringing new drugs to market. Professor Martin Adelman, patent expert at George Washington University law school, agrees. "This case is just about money: it's about the pharmaceutical developers having to share some money with the developers of research tools," he says. * * *

You can read useful reviews of, and download, all the briefs in this case via the Patently-O: Patent Law Blog's entry from earlier this year.

Here is the link to the Medill School of Journalism - On the Docket's resources in the case.

Posted by Marcia Oddi on Monday, April 18, 2005
Posted to Biotech | General Law Related

Ind. Decisions - Court of Appeals posts three today

Joshua J. Kendall v. State of Indiana (4/18/05 IndCtApp) [Criminal Law & Procedure]
Barnes, Judge

* * * Conclusion. The trial court did not abuse its discretion in denying Kendall’s motion for severance and his challenge to the State’s use of peremptory strikes, and in admitting evidence recovered during the search of 407 North Hamilton. The trial court also did not err in modifying the findings of its pretrial motion to suppress ruling during trial. We find Kendall’s sentence to be appropriate. Finally, we reject the State’s argument that the trial court erred in refusing to enter a judgment of conviction for possession of cocaine and a firearm in addition to a judgment of conviction for dealing in cocaine by possession of cocaine with intent to deliver. We affirm.
Affirmed.
SULLIVAN, J., concurs.

NAJAM, J., concurs in part and dissents in part, with opinion. I fully concur with the majority on Issues I, II, IV, and V, but respectfully dissent from the majority’s determinations on Issue III and the State’s cross-appeal. Consistent with the panel in Hardister v. State, 821 N.E.2d 912 (Ind. Ct. App. 2005), I would hold that the officers in this case violated the Fourth Amendment when, after the occupants exercised their right not to answer the front door, the officers ran to the back door of the residence in pursuit of those inside. Further, the trial court erred when it sua sponte vacated Kendall’s possession of cocaine and a firearm conviction because possession of cocaine and a firearm is not a lesser-included offense of possession with intent to deliver. * * *


David Fields v. State of Indiana
(4/18/05 IndCtApp) [Criminal Law & Procedure]
May, Judge
David Fields appeals the sentences imposed after he entered pleas of guilty to burglary, conspiracy to commit burglary, attempted robbery, and conspiracy to commit robbery, all as Class A felonies. He raises two issues on appeal, which we consolidate and restate as whether the conspiracy to commit a burglary and a robbery that is attempted during the burglary amount to a single episode of criminal conduct for sentencing purposes.

The State asserts on cross-appeal the trial court erred in allowing Fields to challenge two of his convictions on double jeopardy grounds, which challenge resulted in the merger of the convictions of attempted robbery and conspiracy to commit robbery. Finally, we address sua sponte whether there was a factual basis for Fields’ plea of guilty to conspiracy to commit burglary as a Class A felony. We affirm in part, reverse in part, and remand. * * *

We accordingly vacate Fields’ conviction of conspiracy to commit burglary as a Class A felony and direct the trial court on remand to enter a conviction of conspiracy to commit burglary as a Class B felony. We further instruct the court to resentence Fields in a manner consistent with our determination his offenses of conspiracy to commit burglary and attempted robbery represent a single episode of criminal conduct for purposes of Ind. Code § 35-50-1-2.
Affirmed in part, reversed in part, and remanded.
BAKER, J., and BAILEY, J., concur.

Timothy F. Kelly d/b/a Timothy F. Kelly & Assoc. v. Stanley Levandoski d/b/a Stan's Service (4/18/05 IndCtApp) [Contracts, Agency]
May, Judge
* * * We cannot say as a matter of law Kelly’s statements to Levandoski could not have created a contract for services. Kelly’s request that Levandoski keep the van because Kelly needed it for litigation purposes was a request for services in connection with litigation. The trial court did not err when it excluded portions of the testimony of Kelly’s expert witness, and the evidence supported the trial court’s instructions. As Kelly has not demonstrated error, we affirm the judgment of the trial court. Affirmed.
DARDEN, J., and SHARPNACK, J., concur.

Posted by Marcia Oddi on Monday, April 18, 2005
Posted to Ind. App.Ct. Decisions

Environment - Stories today

"The Pines groundwater update set for Tuesday: Results from tests in Beverly Shores to be announced" is the headline to this story today in the Munster (NW Indiana) Times.

"Measure eases rules on sewer overflows" is the headline to this story about Senate Bill 620, reporting on the Governor's signing of the bill.

"State lawmakers turn to environment: Most of bills are headed to conference committees" is the headline to a story by Martin DeAgostino from the Sunday South Bend Tribune. Some quotes:

Lawmakers hope to stuff a grab-bag of environmental measures into two or three larger bills in order to secure their passage this year, according to legislators and lobbyists.

The topics range from Indiana's waste-tire fund to wetlands, from brownfield development to underground fuel-storage tanks.

Several other bills with environmental implications are in play as well. One bill grants large tax incentives for so-called "clean coal technology," and another eases the permit-review process for landfill operators.

Most of the bills are headed to conference committee, where lawmakers will negotiate differences between House and Senate language. But conference is also where new language can emerge under deadline pressures that don't allow close study.

The process will be more opaque this year because only some of the bills have had Senate hearings. That resulted from a House Democratic boycott that sidetracked 131 House bills on a deadline day for passage.

Although many environmental bills have been revived in broadly related Senate bills, no Senate committees have reviewed them. "None of those issues had hearings over here in the Senate," said Sen. Beverly Gard, chairwoman of the Energy and Environmental Affairs Committee. * * *

Waste-tire assistance fund. The bill applies a per-tire fee of 25 cents to more types of tires than current law does, and it divides the revenue flow into two specific streams. House sponsor David Wolkins, R-Winona Lake, favored a 75-cent fee increase to promote more tire recycling and waste-pile cleanup. But he could not sell it to reluctant colleagues who feared a "tax increase" label.

Underground fuel-storage tanks. Separate bills expand a tank-inspection fee to diesel fuel and dedicate more money to a cleanup fund for leaking tanks. The fund has dwindled from $80 million to $5 million, not nearly enough to remediate soil and groundwater contamination. Gard said restoring the fund to solvency would be the single most beneficial environmental action this year.

Brownfield development incentives. Legislation authorizes state and local authorities to waive or reduce delinquent taxes if a new owner with development plans did not contribute to existing contamination. It also authorizes up to $200,000 in state tax credits for remediation efforts by developers who are not responsible for existing contamination.

Most of those measures are now contained in an omnibus environmental bill that is destined for separation, according to Wolkins and Gard. Other measures, including clean-coal technology and landfill permit reviews, are in stand-alone bills that seem poised for passage.

For an industry viewpoint on this year's environmental legislation, see this page, from the Indiana Cast Metal Ass'n.

Posted by Marcia Oddi on Monday, April 18, 2005
Posted to Environment

Law - Hourly legal fees under attack in Chicago

"Hourly legal fees under attack: Traditional billing by time spent is standard at most big law firms, but McGuireWoods is offering alternatives" is the headline to a story today in the Chicago Tribune that begins:

Year after year, the most pressing concern for in-house corporate law departments is controlling skyrocketing legal costs.

While most law firms pay lip service to helping companies address this issue, at least one is staking its reputation on it.

In an advertising campaign to begin Monday, McGuireWoods LLP will market its ability to tailor fees for its legal services that go beyond the traditional hourly rate. The ads, to appear in Crain's Chicago Business, the Midwest edition of Fortune magazine and other local publications, is expected to create a stir in the Chicago legal community because the Richmond, Va.-based firm is taking shots at the competition.

In one ad, a pudgy, balding, middle-aged man in a business suit leans back in a chair and blows bubbles into the air. The caption reads, "Law firms that charge strictly by the hour are about to have their bubbles burst."

In the genteel world of corporate law firms, this sort of edgy advertising is highly unusual. Most big law firms rarely advertise, and when they do, they usually brag about big verdicts or how hard they work.

McGuireWoods also is attacking one of the sacred cows of the legal world: the billable hour.


Posted by Marcia Oddi on Monday, April 18, 2005
Posted to General Law Related

Law - Yet another article about the U.S. News rankings

Some quotes from the article that originally appeared in The National Law Journal:

When Stephen McAllister, the dean of the University of Kansas School of Law, learned that his institution had plunged 37 spots in the latest law school rankings, he invited students to an open forum where they could air their gripes and share their worries.

Plummeting to a precipitous 100th place, just one slot away from the lower "third tier" in the rankings by U.S. News & World Report, the University of Kansas had some damage control to do. * * *

Susanah Mead, the interim dean at Indiana University School of Law-Indianapolis, also shares that skepticism about the rankings, although she realizes their importance, especially now. Since the rankings were released last month, she has spent much of her time trying to bolster the school's image.

When its score tumbled 32 places to 95th, she dashed off a letter to the school's entire student body. Her letter described the rankings as "flawed," but nevertheless observed that the university could not "ignore the reality that those who are unfamiliar with law schools and legal education consult rankings." Her letter also invited students to attend an open forum, scheduled for later this month.

"It just makes me sick," said Mead, referring to the drop. "I've been at this law school since 1978, and I know that we are a far better school now than we were five or six years ago."

A big reason for the Indianapolis school's fall in the rankings was the wrong information its admissions office gave the publication, she said. Morse, with U.S. News & World Report, confirmed that the school had made a mistake in reporting some of its numbers.

"We were shocked," said Mead, adding that this was "a tough time" for the school.

Posted by Marcia Oddi on Monday, April 18, 2005
Posted to General Law Related

Ind. Gov't. - Another editorial on Senate Bill 381

The Fort Wayne Journal Gazette has an editorial today in Senate Bill 381 that begins:

Senate Bill 381 began its life as a mechanism to establish a statewide broadband network and pay for its deployment through low-interest loans. It has morphed, by way of amendments coming from the House, into a telecommunications deregulation beast that a conference committee should tame.

This excessive faith in the free market is misplaced, especially considering this bill hamstrings the one instrument to fight price gouging and other anti-consumer practices. Even the father of airline deregulation, Alfred Kahn, warned that successful deregulation rarely consists of total laissez-faire.

For more, see this ILB entry from April 14th.

Posted by Marcia Oddi on Monday, April 18, 2005
Posted to Indiana Government

Courts - Blackmun Clerks Had Too Much Power, Says Historian

"Blackmun Clerks Had Too Much Power, Says Historian" is the headline to an interesting story by Tony Mauro, quoting from work fdone by historian David Garrow. Examples:

The late Supreme Court Justice Harry Blackmun ceded so much of his authority to his law clerks during his 24-year tenure that it amounts to "a scandalous abdication of judicial responsibility," Pulitzer Prize-winning historian David Garrow asserts in a magazine article out today.

The article in Legal Affairs, based on research done by Garrow in Blackmun's papers released last year at the Library of Congress, recounts numerous cases in which memoranda from clerks and other documents show an outsized influence and assertive tone by clerks that Garrow says is unmatched by other justices whose papers are available. * * *

The article, a copy of which began circulating among former Blackmun clerks late last week, has already stirred controversy. Several of his clerks insisted that the same kinds of exchanges occur verbally in other chambers, but that because of Blackmun's preference for written memos, his files give an exaggerated picture of the clerks' influence.

"Professor Garrow's piece is based on sadly defective research," said Yale Law School Dean Harold Koh, who conducted an extensive oral history with Blackmun and orchestrated the release of his papers. "What he simply misses is that Justice Blackmun directed his clerks orally through myriad conversations each day. The clerks responded in writing ... Frankly, a justice as careful and thorough as Justice Blackmun deserves better." Legal Affairs was launched in association with Koh's Yale Law School in 2002, but ties between Yale and the magazine ended last October.

Garrow's article appears just two weeks before the publication of "Becoming Justice Blackmun," a book based on Blackmun's papers authored by Pulitzer Prize-winning New York Times reporter Linda Greenhouse. On Friday Greenhouse declined substantive comment on Garrow's article. "It's not my job to defend Harry Blackmun," she said, adding that her own book offers a "well-rounded" portrayal of Blackmun's relationship with his clerks.

Indeed, a preview copy of Greenhouse's book recounts some of the same cases cited by Garrow, but she does not portray the clerk relationship as exceptional, and she also offers instances when Blackmun rejected the advice of his clerks.


Posted by Marcia Oddi on Monday, April 18, 2005
Posted to General Law Related

Ind. Decisions - 7th Circuit posts four today

Pervaiz, Abida v. Gonzales, Alberto (Bd.Imm.App.) [6 pp.- agency]

Before BAUER, POSNER, and EVANS, Circuit Judges.
POSNER, Circuit Judge. Abida Pervaiz, a Pakistani, came to the United States in 1991 on a tourist visa, overstayed, and eventually applied for asylum or alternatively for withholding of removal. On January 31, 2002, the immigration service informed her lawyer that the hearing on Pervaiz’s claim of asylum would be held on January 24, 2003, at 1 p.m. On May 15, 2002, the service sent the lawyer a letter stating that the time of the hearing had been changed from 1 p.m. to 9 a.m. January 24, 2003, arrived, and Pervaiz and her lawyer showed up for the hearing—at 1 p.m.—only to be told that because she had failed to appear at 9, her claim for asylum had been deemed abandoned and she had been ordered, in absentia, removed. * * *

Pervaiz retained another lawyer, who on April 15, 2004, filed, this time with the Board of Immigration Appeals, before which the appeal from the June 13 ruling was pending, another motion to reopen. The ground was that the order would not have been issued had it not been for ineffective assistance by her first lawyer. Although the constitutional doctrine of ineffective assistance of counsel, being an interpretation of the Sixth Amendment’s right to counsel in criminal cases, is inapplicable to civil litigation—including removal, Stroe v. INS, 256 F.3d 498, 499-501 (7th Cir. 2001)— the Board of Immigration Appeals has, in the exercise of its discretion, decided that ineffective assistance can be a ground for forgiving a failure to comply with required procedures. Id. at 501. The government does not challenge the Board’s claim to have this discretionary authority. * * *

The 180-day deadline is not, as the Board believed, jurisdictional. Borges v. Gonzales, 2005 WL 712367, at *1 (3d Cir. March 30, 2005). It is merely a statute of limitations and is therefore subject to equitable tolling. Id.; Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir. 1999) * * *

But the test for equitable tolling, both generally and in the immigration context, is not the length of the delay in filing the complaint or other pleading; it is whether the claimant could reasonably have been expected to have filed earlier. * * *

Her first lawyer led the immigration judge and Board of Immigration Appeals into error by failing to distinguish between the adequacy of notice of a hearing and the receipt of the notice, an elementary distinction. * * *

The petition for review is granted and the case remanded to the Board of Immigration Appeals for further proceedings consistent with this opinion.

Durkin, Michael v. Equifax Check (ND Ill.) [29 pp. - civil]

Before COFFEY, RIPPLE, and MANION, Circuit Judges.
MANION, Circuit Judge. Equifax Check Services, Inc.,1 uses a series of form letters to assist it in collecting debts from dishonored checks. Equifax mailed such a series of letters to Michael Durkin and, separately, to Loretta Reed. Believing that certain letters were unacceptably confusing, Durkin, and later Reed, sued Equifax under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692, et seq. The district court consolidated the two actions into one. After denying the plaintiffs summary judgment, the district court granted Equifax’s motion to exclude the plaintiffs’ only expert witness. This evidentiary ruling led Equifax to move for summary judgment, arguing that the plaintiffs failed to bring forth the necessary extrinsic evidence to support their case. The district court agreed and granted Equifax summary judgment. The plaintiffs appealed. We affirm.

USA v. Mitra, Rajib K. (WD Wis.) [9 pp. - criminal]

Before EASTERBROOK, WOOD, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. Wisconsin’s capital city uses a computer-based radio system for police, fire, ambulance, and other emergency communications. The Smartnet II, made by Motorola, spreads traffic across 20 frequencies. * * * Police arrested Rajib Mitra, a student in the University of Wisconsin’s graduate business school. They found the radio hardware and computer gear that he had used to monitor communications over the Smartnet system, analyze how it operated, and send the signals that took control of the system. Mitra, who in 2000 had received a B.S. in computer science from the University, possessed two other credentials for this kind of work: criminal convictions (in 1996 and 1998) for hacking into computers in order to perform malicious mischief. A jury convicted Mitra of two counts of intentional interference with computer-related systems used in interstate commerce. See 18 U.S.C. §1030(a)(5). He has been sentenced to 96 months’ imprisonment. On appeal he says that his conduct does not violate §1030—and that, if it does, the statute exceeds Congress’s commerce power. * * * Affirmed.

USA v. Ramsey, Arthur [13 pp. - criminal]

Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. After a jury trial, Arthur L. Ramsey was acquitted of assaulting a federal officer with a dangerous weapon and found guilty of maintaining a drug house by permitting his son to use the mobile home he leased for distributing and possessing with intent to distribute crack cocaine. Although Ramsey appeals the district court’s denial of his motion to dismiss from the indictment of the drug house count, we find that the indictment included the essential elements of the crime. We also find based on our review of the evidence that the district court’s failure to include the statute’s mens rea requirement was harmless error. Thus, we affirm Ramsey’s conviction. However, in light of the Supreme Court’s recent decision in United States v. Booker, 125 S.Ct. 738 (2005), and this court’s decision in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), we order a limited remand regarding Ramsey’s sentence.

Posted by Marcia Oddi on Monday, April 18, 2005
Posted to Ind. (7th Cir.) Decisions

Sunday, April 17, 2005

Ind. Gov't. - Open Door experts question whether officials retreating from law

"Open Door experts question whether officials retreating from law" is the headline to a story in the Fort Wayne Journal Gazette today. Some quotes:

Retreats are treated like any other public meeting under the Indiana Open Door Law. Publicly funded boards, commissions and councils must post a notice of a retreat 48 hours before it is held, even if it is in another state.

“The reason why it needs to be dealt with is because we are now in an atmosphere in which government is increasingly shutting out people,” says Ray Moscowitz, a 35-year newspaper veteran and retired editorial director for Nixon Newspapers. “This is an issue in which civil servants forget that they are supposed to be serving the citizenry, the people who pay their salaries.”

Indianapolis attorney Richard Cardwell, chief architect of the Indiana Open Door Law and former counsel for the Hoosier State Press Association, says getting any kind of revision through the Indiana General Assembly will be a tough sell.

“You’re dealing with people, almost all of which have been in local government or been attorneys for local government,” he said. “It’s a political process that’s very difficult to get what you can reasonably expect out of them.”

Although Cardwell says teleconferencing or access via Web cams would allow public access, McCall says it does not present the best situation for conducting a public meeting or understanding what goes on in one for the participants or the observers.

“As a communication professor, I can tell you that people don’t interact the same over the phone as they do in person,” McCall said.

Karen Davis, the state public access counselor, says the word “retreat” is not mentioned in the Indiana Open Door Law, but retreat meetings are like any other – they must be classified as executive sessions or have an agenda the public can see with minutes they examine. They also must be able to attend it, regardless of whether it is held in San Pierre in northern Indiana, San Antonio or San Francisco.

“It’s obvious when it’s out of state that it would create barriers to the board’s business,” Davis says.

Davis, like Cardwell, sees more opportunities for abuse with Indiana retreats than those in other states.

Steve Key, counsel for the Hoosier State Press Association, says retreats are not by nature executive sessions – even if, like an executive session, the public and media are not in attendance.

“Just because you call something a retreat, a work session or whatever – just because you put a label on it other than a meeting doesn’t take it out of the scope of a meeting or the Open Door Law,” Key said.

And what has happened with Senator Gard's Senate Bill 310, last discussed in the ILB in this March 14th ILB entry? Ther bill, which would ban "serial" meetings and forbid votes on public business by telephone and over the Internet, was lauded in a number of editorials, including those mentioned in this Feb. 2 ILB entry. Senate Bill 310 died in the House Committee on Local Government.

Posted by Marcia Oddi on Sunday, April 17, 2005
Posted to Indiana Government

Sports Law - NIT v. NCAA

"NIT will battle NCAA in court -- maybe on it: Both sides confident as basketball tournament debate heads for trial in July" was the headline to a story 4/13/05 in the Indianapolis Star. Some quotes:

An antitrust lawsuit that could lead to big-money entrepreneurs competing for teams with the men's basketball NCAA Tournament is scheduled for trial July 5 in U.S. District Court in New York.

The lawsuit was filed by organizers of the National Invitation Tournament, challenging the NCAA's rule that requires members to play in its postseason tournament if invited. * * *

"There is such a remote possibility the NCAA would lose that we're not uncomfortable at all," NCAA vice president David Berst said. "The difficulty is that the five schools on the MIBA side have the same opinion. We are confident an association can set season limits, rules and say you have to participate in the association's championship." [The Metropolitan Intercollegiate Basketball Association (MIBA), which runs the NIT, comprises five schools: St. John's, Fordham, Manhattan, Wagner and New York University.]

"Lawsuit causes schedule headaches" was the headline to a story 4/15/05, also in the Indianapolis Star.

Posted by Marcia Oddi on Sunday, April 17, 2005
Posted to General Law Related

Law - Breckinridge families told payday still years away

Updating this entry from 8/27/04 titled "Former landowners seek to reclaim property taken by government for WW II training base," and this entry from 4/6/05 titled "U.S. told to pay for Kentucky land it seized" is another story by Maureen Hayden of the Evansville Courier& Press. This one is titled: "Breckinridge families told payday still years away." The report begins:

MORGANFIELD, Ky. - More than 300 people packed the parish hall at St. Ann Catholic Church in this Western Kentucky town on Friday to get a dose of reality.

Elated by news that a judge had ruled in their long legal fight to get compensation for land taken from their families by the federal government to make way for a World War II training camp, they were reminded of just how slow the wheels of justice can turn. Despite a judge's ruling that says they're entitled to $32 million in compensation, it could take another 5 to 10 years for them to see a nickel of it.

Posted by Marcia Oddi on Sunday, April 17, 2005
Posted to General Law Related

Ind. Decisions - Random testing in schools for steroids

"Testing an expensive proposition" is the headline to this story in the Munster (NW Indiana) Times by Jeff Carroll. Some quotes:

With budgets already stretched, school systems are not anxious to take on added expense.

That's what steroid testing would be -- and a pricey one at that.

Extensive tests for steroids can run as high as $300 -- that's how much the laboratory used by the University of Texas-El Paso charges, athletic director Bob Stull told ESPN.com.

Most steroid tests, even less-sophisticated ones that scan only for the most common steroids, cost $100-plus. That's still much more than tests for street drugs like cocaine and marijuana, which usually cost about $20.

Homewood-Flossmoor High School has conducted random drug testing of its student athletes for more than a decade, and it has been pleased with the overall results. However, H-F conducts its testing in a shroud of semi-secrecy, for practical reasons.

"We really don't talk about our program, what we do test for and what we don't test for," said Dave Thieman, a Homewood-Flossmoor spokesman. "We leave it general. We don't want to tip off the students that we don't test for certain things or that we do test for certain things.

"Our program has been very successful. It's given students an easy way out, an easy way to say, 'I can't do those types of things because I might be tested.' The community has supported it, and it's been a big success."

Not all communities are as receptive to random drug testing. Some programs have been challenged as being discriminatory to athletes and a violation of student civil liberties.

Two former Lake Central players said steroid use in its football program was widespread in 2000. That was the same year the school put a planned drug-testing program on hold, and Chesterton and Munster high schools suspended programs already in place because of an Indiana Court of Appeals ruling.

The court deemed testing at Northwestern High School near Kokomo a violation of constitutional protection of illegal search and seizure.

The Indiana Supreme Court later overruled that decision in Linke v. Northwestern School Corp.

Here are the Curt of Appeals 8/21/2000 decision, the Court of Appeals' 10/6/2000 opinion on petition for rehearing, and the Indiana Supreme Court's 3/5/2002 3-2 reversal (affirming the decision of the trial court).

Posted by Marcia Oddi on Sunday, April 17, 2005
Posted to Ind. Sup.Ct. Decisions

Environment - Interview with IDEM's Commissioner

The Bloomington Alternative has a lengthy interview, which should be read in full, with still new IDEM Commissioner Tom Easterly -- written up by Steven Higgs.

Posted by Marcia Oddi on Sunday, April 17, 2005
Posted to Environment

Ind. Decisions - More on "associational standing" question in Floyd subdivision suit

On April 2 the ILB had an entry on a suit involving whether a citizens' group has the right to sue the Floyd County Plan Commission in an effort to overturn its approval of a subdivision near Greenville.

Here is the trial court's answer, in this story by Ben Zion Hershberg published April 16 in the Louisville Courier Journal. The headline: "Greenville group gets OK to sue: Subdivision plan faces more battles." Some quotes:

A judge has ruled that the Greenville Concerned Citizens group can sue the Floyd County Plan Commission for approving a subdivision near Greenville.

Special Judge Daniel Donahue issued the ruling in Floyd Superior Court on Thursday. In the past, Indiana courts have not granted citizen groups the right to take legal action in planning and zoning issues. * * *

Opposition to the Greenville group suing the Plan Commission was initiated by Thieneman Development, Wilson said. The company argued that the citizens group didn't have the legal right to sue, based on numerous decisions in which Indiana courts said that in order to sue in planning and zoning cases, someone must be directly harmed by a planning agency's decision.

Thieneman's lawyer, Greg Fifer, and Wilson argued at hearings that the not-for-profit organization doesn't own any property that would be affected by Heritage Springs. They also said its lawyers didn't identify its members or show how they would be affected by the subdivision.

Gillenwater argued that a January ruling by the Indiana Court of Appeals changes the legal framework for such lawsuits. In that case, the appeals court said Save the Valley, a citizen group, had the right to take legal action for its members against the Clifty Creek power plant near Madison.

Even though that wasn't a planning and zoning case, Gillenwater argued, the questions raised about its right to sue are similar to the Greenville group's lawsuit. [Judge]Donahue didn't explain his decision.

Thanks to the reader who sent me this news and who has promised to forward a copy of the judge's ruling, if and when it is avaiable.

Posted by Marcia Oddi on Sunday, April 17, 2005
Posted to Ind. Trial Ct. Decisions | Indiana Law

Saturday, April 16, 2005

Environment - Another story on the "no more stringent" language in SB 298

"Pollution bill would keep state from having tougher rules than EPA" is the title to a story by Tammy Webber in Saturday's Indianapolis Star. Some quotes:

Indiana environmental boards would be forbidden to adopt pollution rules stricter than those set by the U.S. Environmental Protection Agency under a bill that has outraged environmental groups and a top Republican senator.

Proponents of the measure -- pushed by industrial trade groups -- say federal rules to control air, land and water pollution generally are good enough for Indiana, and making them stricter discourages businesses from expanding or locating in the state.

But Sen. Beverly Gard, R-Greenfield, chairwoman of the Senate Energy and Environmental Affairs Committee, called the bill "absolutely the worst piece of environmental legislation that I've seen for a long, long time." She charged that it would impede efforts to protect people's health and the environment from threats that EPA standards don't address or couldn't foresee.

What's more, it basically would cede the state's authority -- and responsibilities -- to the federal government, Gard and environmentalists said.

"I don't know when we've had an environmental issue I've been more disturbed over," Gard said. "Maybe (to legislators), on the surface without thinking it through, it might sound good. But if you think about it, it's terribly onerous."

"The federal standards are meant to be minimum," she said.

State standards can be stricter, but not weaker, than the EPA's. Most Indiana environmental rules mirror federal rules, although the Indiana Department of Environmental Management sometimes has sought stricter standards. * * *

Rep. David Wolkins, R-Winona Lake, introduced the provisions in a bill that died last month when House Democrats walked out in a dispute with Republicans. But the provisions later were inserted into Senate Bill 298, sponsored by Sen. R. Michael Young, R-Indianapolis, which also addresses cost-benefit analyses of environmental rules, without passing through Gard's committee.

That bill now is in a conference committee, where leaders of the House and Senate caucuses will attempt to work out differences in the next few weeks. Gard will be an adviser to the committee but will not have a vote. Young said he planned to hold a public hearing on the bill next week.

Check this April 12 ILB entry for more information and links.

Posted by Marcia Oddi on Saturday, April 16, 2005
Posted to Environment | Indiana Law

Friday, April 15, 2005

Ind. Decisions - Transfer list for week ending April 15, 2005

Here is the Indiana Supreme Court's transfer list for the week ending April 15, 2005. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column. One case was granted transfer.

Posted by Marcia Oddi on Friday, April 15, 2005
Posted to Indiana Transfer Lists

Ind. Gov't. - Evolution flap riles East Porter

"Evolution flap riles East Porter" is the headline to this story today in the Gary Post-Tribune, which unfortunately does not archive its stories. It follows up on a story Wednesday in the Munster (NW Indiana) Times, quoted in this ILB entry. Some quotes from today's story:

The East Porter County School Board has delayed the adoption of biology textbooks because they don’t mention creationism, a theory that a divine being is responsible for the creation of life. * * *

Board member Tim Bucher said he wished the books were more balanced and mentioned there were other theories besides evolution.

“I believe it’s a theory of evolution, not a fact of evolution.”

Bucher, who described himself as a fundamentalist Christian who believes the Bible literally, said he hasn’t seen the recommended texts from Prentice Hall and Holt yet. “I’m trying to be a realist along with my Christian faith. At least let the kids know about it,” he said of creationism. “We have people on the committee who we respect. Once in awhile, we ought to look at the books we approve anyway.”

Superintendent Roger Luekens said the book would likely be adopted once the board looks at it. “I am concerned with textbooks teaching to the state standards and not trying to dictate someone’s faith.” * * *

Robert Rivers, dean of the School of Education at Purdue University Calumet in Hammond, said creationism is not a scientific theory. Rivers was part of the statewide committee that developed the state’s science standards. “It’s a faith-based approach,” he said of creationism. “It would be appropriate in a philosophy or social studies class that examines various religious approaches for explanations of the conditions of man.”

Rivers, a former high school biology teacher and evangelical Christian, said the teaching of evolution and natural selection has been a cornerstone of modern biology.

Posted by Marcia Oddi on Friday, April 15, 2005
Posted to Indiana Government

Econ. Dev. - [Updated] Steel industry rebirth, and the Mittals up close

The Chesterton Tribune had a very interesting story last Friday by Kevin Nevers, complete with great photos, titled "110 inch plate mill back in action at Burns Harbor." Some quotes:

After nearly five years in moth balls, the 110-inch plate mill at International Steel Group (ISG)-Burns Harbor is back in business.

On Wednesday ISG restarted the mill, in a move which the company says was demand driven. “We couldn’t be more pleased with the successful restart of this facility,” said Thomas Cera, vice-president of plate operations. “Our decision to return this mill to operation was driven by increasing demand from our existing customers and our desire to quickly respond to their needs.”

Bethlehem Steel Corporation idled the 110-inch mill in August 2000, less than 15 months before it filed for Chapter 11 bankruptcy protection. At the time Bethlehem officials spoke of the idling as though it were a short-term response to a temporary softening of the plate market, caused by third-quarter doldrums and a spike in foreign imports, but in the end the 110-inch mill remained shuttered for good.

ISG spokesperson Jolice Pojeta told the Chesterton Tribune today that the primary market for the 110-inch mill is original equipment manufacturers—or OEMs—like Caterpillar, John Deere, and Union Tank Car. But it also produces a healthy quantity of armor plate used by the U.S. Navy’s shipbuilding contractors. And much of the plate—military grade included—is of the value-added variety: heat-treated for fracture resistance and greater formability. * * *

The restart of the 110-inch mill created 65 new jobs, said Paul Gibson, president of United Steelworkers of America (USWA) Local 6787, all of them filled by relatives of bargaining unit employees, under the union’s collective bargaining agreement with ISG. Another 35 or so members are also working at the 110-inch mill after successfully bidding for positions there. First preference for bids went to members employed at the 160-inch mill, and bidding was then opened to members on a plant-wide basis.

Ironically enough, if anyone had asked Gipson only two months before ISG announced the restart of the 110-inch mill, he would have questioned the wisdom of that move, given the fragmentation of the domestic plate industry and a weak market for the product.

But a lot can happen in two months, Gipson said this morning. For one thing, a weak U.S. dollar has dampened foreign imports. For another, soaring demand in China for steel of all kinds has spiked the price of high carbon plate to virtually unprecedented levels. Only two years ago it was in the neighborhood of $350 per ton, he remarked. Now it’s going for $800 to $900 per ton.

The impending merger of ISG with Mittal Steel Company, however, has also strengthened the case for the restart. When Bethlehem was making its last-gasp efforts to preserve its autonomy, it sold many of its assets, especially energy-related ones, and lost much of its old vertical organization, Gipson said. The result: ISG has been paying “a tremendous price” for coal, scrap, and other raw materials.

Lakshmi Mittal, on the other hand—who with his family will hold 88 percent of the new company when the merger with ISG closes sometime in the next few weeks—“brings to the table a lot of resources for making steel that he already owns,” Gipson remarked. Those resources include over 40 percent captive source of iron ore and 2 billion tons of reserves, according to an investor presentation prepared by Mittal in October 2004; a “significant captive source” of coal and more than 1.5 billion tons of reserves; and more than 15 million tons of production capacity of coke, enough to meet 100 percent of the company’s needs.

The upshot, in Gipson’s view: the restart of the 110-inch mill “is a good thing. It should have a very good market.”

The Munster (NW Indiana) Times has a story subtitled "Mittal Steel empire truly a family affair." Some quotes:
Now meet the Mittals. They log hundreds of thousands of miles per year on private jets. They negotiate the purchase of a steel mill in Central Asia one day, another in East Chicago the next.

Company President and Chief Financial Officer Aditya Mittal, 28, cut his teeth seven years ago managing the $755 million initial public offering for his father's Ispat International N.V.

Aditya Mittal's four-day wedding in Calcutta -- held in a one-time bastion of British imperialism -- sparked a leftist protest. But that was nothing compared to sister Vanisha's ceremony.

Last year, Indian-born father, Lakshmi Mittal, 54, threw a $60 million, weeklong extravaganza in France for his 23-year-old daughter and her new husband. One party was in the Palace of Versailles.

And Lakshmi Mittal's house? It's a $127 million, 12-bedroom mansion in London's Kensington Place Gardens. The family business is Mittal Steel Co. N.V.

Revenue this year will be about $31.5 billion. This week, the company closed a $4.5 billion deal for International Steel Group Inc., which has mills in East Chicago and Burns Harbor. * * *

Lakshmi Mittal's stock is only going up. He's now worth $25 billion. He vaulted up 59 places on the Forbes 2005 list of the world's billionaires. Only Microsoft's Bill Gates (1) and uber-investor Warren Buffet (2) are worth more.

After a year that saw Lakshmi Mittal's net worth grow by at least $14 billion, his newly formed Mittal Steel Co. N.V. ate International Steel Group Inc. for dessert in a deal valued at $4.5 billion.

[Updated 4/17/05] "Mittal US HQ to be in Chicago area" is the headline to a story in the Chesterton Tribune. Some quotes:
On Thursday Mittal Steel Company announced plans to locate its combined U.S. headquarters somewhere “in the Chicago-land area.” Whether that means Northwest Indiana remains to be seen. * * *

What exactly Mittal Steel USA will look like as a corporate entity became a little clearer with Thursday’s announcement. It will be divided into two regions, with a western regional office located at Burns Harbor and an eastern one at Richfield, Ohio.

The Western Region will include ISG’s facilities at Burns Harbor and Indiana Harbor; at Riverdale and Hennepin, Ill., Columbus Coatings in Ohio; Mittal’s Indiana Harbor facility; I/N Tek and I/N Kote, joint venture companies with the Nippon Steel Company of Japan; and Minorca Mine.

The Eastern Region will include ISG’s facilities at Coatesville and Conshohocken, Pa; Sparrows Point, Md.; Lackawanna, N.Y.; and Cleveland and Warren, Ohio.

Posted by Marcia Oddi on Friday, April 15, 2005
Posted to Indiana economic development

Environment - PCB at Marble Hill: Answers sought on plans to expand storage

"PCB at Marble Hill Answers sought on plans to expand storage" is the headline to a story today in the Madison Courier, a followup to the story featured in this ILB entry from March 25th. Some quotes from today's story by Jenny Jones:

Transformer Decommissioning LLC, an Indianapolis-based company that recycles electrical transformers, applied to the EPA and the IDEM in February. The company wants a permit to store transformers with PCBs of greater than 50 parts per million at its Marble Hill facility.

People who live near Marble Hill are concerned about storing PCBs near their homes, water wells and the river. PCBs are known to have negative health effects to those who are exposed to large quantities of the waste, according to the Web site for the Agency for Toxic Substances and Disease Registry.

About eight residents attended an information session from 3 to 6 p.m. Tuesday. During the session, residents were able to ask EPA, IDEM and Transformer Decommissioning LLC representatives questions. * * *

In 1998, VPI bought buildings at Marble Hill and began recycling there. Then in 1999, two of the country’s largest transformer recycling companies left the industry, Van Vliet said.

Electric companies began asking VPI to recycle nonregulated transformers, those with PCBs of less than 50 parts per million, Van Vliet said. That’s when Transformer Decommissioning LLC was formed and it began recycling transformers.

“We were already at Marble Hill,” Van Vliet said.

Residents wanted to know more about how the transformers are shipped to Marble Hill, what the company does with transformers that contain PCBs and how those PCBs are stored.

Priscilla Fonseca of the EPA explained that the transformers are delivered to Transformer Decommissioning LLC in hazardous-waste vehicles. When they arrive, the transformers are tested for PCB, she said.

Transformers that test positive for PCBs are put into a secondary storage area that has a sealed concrete floor, sealed joints and a roof. Transformers that contain PCBs are not opened, Fonseca said.

Residents seemed a little less anxious about the PCBs once they understood how they are stored and shipped, but they were still concerned about the future of the facility. They wanted to know how long the PCBs would be stored at Marble Hill and if Transformer Decommissioning LLC would ever want to incinerate the waste.

Fonseca said the company does not receive a lot of transformers that contain commercial PCBs because there are only about 200,000 PCB transformers left in the country. PCB production was stopped in 1976 because of health and environmental concerns. “We work hard to encourage electric companies to phase out PCBs,” she said.

When the company does receive transformers that contain PCBs, it is allowed to store them for no more than a year, Fonseca said. Within a year they have to be shipped to an incinerator, she said.

Transformer Decommissioning LLC will never be able to incinerate the PCB waste itself because its facilities would not meet federal requirements to do so, Fonseca said. * * *

After the information session, the EPA and IDEM held a public hearing. About 10 residents attended the hearing, some of whom did not attend the session in the afternoon.

When the hearing started, residents were asked to speak into a microphone to record their comments and concerns. There would not be any responses given to residents’ questions or comments during the hearing, said Don de Blasio, community involvement coordinator with the EPA.

Many residents were upset to learn that their comments would not be addressed during the hearing. “I do wish today’s meeting, all of it, could have been tonight,” said Donna Watkins of Nabb.

Residents approached the microphone one-by-one to state their thoughts, but most of them really wanted answers to their questions.

After the hearing, EPA and IDEM representatives agreed to address questions because many residents said they were not able to get off work to attend the information session.

Residents were grateful.

Posted by Marcia Oddi on Friday, April 15, 2005
Posted to Environment

Ind. Decisions - 7th Circuit posts one today

Singh, Uday P. v. Gonzales, Alberto R. (Board of Immigration Appeals) [9 pp.]

Before BAUER, MANION, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. Uday P. Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (the “Board”) denial of his motion to reopen and remand for adjustment of status and his motion for reconsideration. Singh sought the adjustment of status pursuant to an approved visa petition filed by his wife, whom he married while removal proceedings were pending against him. For the reasons that follow, we deny Singh’s petitions.

Posted by Marcia Oddi on Friday, April 15, 2005
Posted to Ind. (7th Cir.) Decisions

Law - Bankruptcy Bill Passes; Bush Expected to Sign

"Bankruptcy Bill Passes; Bush Expected to Sign" is the headline to this story today in the Washington Post. Some quotes:

The House gave final passage yesterday to legislation intended to make it harder for consumers to wipe out debt through bankruptcy, clearing the way for President Bush to sign the bill into law as he has promised to do.

Lawmakers voted 302 to 126 for the bill, which is identical to a measure the Senate passed last month. It would make the most significant changes to bankruptcy law since 1978. Its passage by Congress is a victory for executives in the credit card, retail and auto financing industries who have pushed it for nearly a decade. They argue that the changes are necessary to weed out abusers of the system who use Chapter 7 bankruptcy protection to shirk debt they can afford to pay. * * *

Consumer advocacy groups and many Democrats, who fought the legislation, disagree, arguing that lenders' liberal credit policies and aggressive sales practices have been equally responsible for putting many Americans over their heads in debt. They say the new legislation would be too harsh on individuals driven into debt by job loss, sickness, divorce or military duty. That is especially unfair, they say, because the bill would preserve loopholes that enable wealthy individuals who file for bankruptcy to shield unlimited amounts of money in complex trusts and in multimillion-dollar homes in states including Texas and Florida.

"The big winner under the new law will be credit card issuers, whose reckless and abusive lending practices have driven many Americans to the brink of bankruptcy," said Travis B. Plunkett, lobbyist for the nonprofit Consumer Federation of America. "Now that Americans in bankruptcy will have to pay more back to creditors, they have a right to expect that credit card companies will lower their interest rates and fees. We will be watching credit card companies closely to see if they will become more responsible corporate citizens in return for this unprecedented gift from Congress."

Sensenbrenner, Grassley and other proponents estimate that about 100,000 debtors of the 1 million a year who now file Chapter 7 bankruptcy could repay more than the current system requires. Opponents say the number is closer to 30,000 but that, in any case, the new legislation does little to weed out abuse. Instead, they say, it adds red tape to the process and makes it more expensive by requiring debtors to seek counseling before filing for bankruptcy.

The legislation will become law six months after Bush signs it, which he must do within 10 days or it becomes law automatically.

The central feature of the new bill is that it would take away much of the discretion bankruptcy judges have in deciding who is eligible to wipe out substantial portions of debt by filing under Chapter 7 and who should be forced into filing for Chapter 13 bankruptcy, which requires some repayment of obligations over several years. Instead it would require judges to calculate eligibility by applying a formula, based on income and expenses, to would-be filers whose annual income is above the median in the region in which they live. Those who are required to file under Chapter 13 would have to make repayment for five years. Under current law, those payments cease after three years, even if the debt is not fully repaid.

It also would make consumers who file for bankruptcy wait two to four years longer before they can file again.

"Bankruptcy Requirements to Get Tougher" from today's LA Times.

"Bankruptcy law passes: Congress makes debt harder to erase, requires credit counseling" from the Chicago Tribune.

"Mandatory Counseling, A Good Idea in Theory"
is the title of a column today in the Post by Michelle Singletary. A quote:

The supposed intent of the law's counseling provision is to make sure debtors know they have options other than bankruptcy. That sounds reasonable, right? Well, it would be if the credit-counseling industry was better policed.

Posted by Marcia Oddi on Friday, April 15, 2005
Posted to General Law Related

Ind. Decisions - Lilly wins Round 1 of Zyprexa battle

"Lilly wins Round 1 of Zyprexa battle: Appeal is certain and likely will take a year or longer" is the frontpage headline today in the Indianapolis Star. Jeff Swiatek reports:

A federal judge Friday upheld Eli Lilly and Co.'s Zyprexa patent, giving the drugmaker a critical and clear-cut court victory over generic drug challengers trying to cash in on Lilly's top-selling drug.

In his long-awaited decision, which came 14 months after the patent infringement trial ended, U.S. District Court Judge Richard L. Young shot down all six legal claims made against the Zyprexa patent.

They included charges of double-patenting, getting a patent on an invention that was obvious and misconduct before the patent office.

Any of the claims, if upheld, would have invalidated the U.S. patent on Lilly's all-time best-seller and sent the Indianapolis drugmaker reeling, as it faced the prospect of losing billions in revenue to generic rivals. * * *

[B]usting Lilly's patent, which runs to 2011, would have opened the door to generic companies to sell lower-priced Zyprexa to its many users. The pill is expensive, with the most common daily dose selling wholesale for $6.89 a pill. Zyprexa has been used by more than 16 million people since it came on the market in 1996. * * *

Outcomes of appeals in drug patent cases are far from predictable. It was at the appeal level five years ago that Lilly lost the U.S. patent on its former No. 1 drug, the antidepressant Prozac.

Even though it likely will be appealed, Young's ruling is sure to "lift a major cloud" over Lilly and other major drugmakers that face similar patent challenges involving their top-selling drugs, David Moskowitz, a drug stock analyst for the investment firm Friedman Billings Ramsey, said in a report to investors.

During the trial last year, Lilly lawyer Charles E. Lipsey referred to Zyprexa as Lilly's "life's blood." The drug last year generated almost a third, or $4.4 billion, of Lilly's total sales of $13.86 billion. About 17 percent of total revenue come from U.S. sales of Zyprexa.

Young's 222-page decision was released at 4:50 p.m. electronically on the court's Web site and earlier in document form to attorneys from both sides. A handful of Lilly's lawyers, some of them smiling, left the Downtown Indianapolis federal courthouse without comment about 4:30 p.m. One clutched the inch-thick bound judicial opinion.

In his opinion, which came complete with an index, Young shot down point by point each claim made by the generic companies.

He repeatedly wrote that the generic companies "failed to prove by clear and convincing evidence" that Lilly's patent is invalid.

"He pretty much went the Lilly line," said Gary D. Street, a Cincinnati-area patent attorney who tracked the Zyprexa trial for Wall Street investment firms.

Young took an unusually long time crafting his opinion, perhaps because he wanted it to stand up to the scrutiny of an appeals court, since he knew both sides said they'd appeal if they lost, Street said.

The Star has two related stories, "Makers of generic drugs to appeal," available here; and "Lilly knows the pain of giving up sole rights," available here. The Star also has posted Judge Young's decision on its website, in the event you have trouble accessing the Court's website (see link in entry below from yesterday).

"Judge Upholds Lilly Drug Patent" is the headline to Alex Berenson's story in the business section of today's NY Times.

Posted by Marcia Oddi on Friday, April 15, 2005
Posted to Ind Fed D.Ct. Decisions

Thursday, April 14, 2005

Ind. Decisions - [Updated] Judge Young rules FOR Lilly in generics' challenge to Zyprexa patents

In a 224-page decision issued this afternoon, Judge Richard Young in U.S. District Court for the Southern District of Indiana in Indianapolis has ruled in favor of Eli Lilly in Lilly v. Zenith Goldline Pharmaceuticals, et al.

Bloomberg News had one of the first the reports here:

Eli Lilly & Co. won a court ruling that will prevent generic-drug makers from selling low-cost versions of its $4.4 billion-a-year Zyprexa schizophrenia drug before 2011.

U.S. District Judge Richard L. Young's decision to uphold the patent on the key ingredient in Zyprexa is a defeat for Ivax Corp., Dr. Reddy's Laboratories Ltd. and Teva Pharmaceutical Industries Ltd., which wanted to sell copies of the drug. The ruling was posted on the Indianapolis court's Web site today.

Zyprexa accounts for a third of Lilly's revenue and has been its top seller since generic competition emerged to the Prozac antidepressant in 2001. The ruling may have a ripple effect by shaping how investors view the outcome of patent cases involving Pfizer Inc.'s cholesterol drug Lipitor and the Plavix blood thinner sold by Bristol-Myers Squibb Co., analysts said.

``If we were just waiting for Lilly, it wouldn't be such a big case,'' said Trevor Polischuk, a pharmaceuticals analyst at Orbimed Advisors in New York, before the ruling was announced. ``People are looking at the three of these, and the majority rules. If two or more go against the branded companies, then we will have bloodshed.'' * * *

See this ILB entry for background.

The Indianapolis Star has an early story by Jeff Swiatek on its website , access it here.

Posted by Marcia Oddi on Thursday, April 14, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - State worker fined over meals, golf

The Indianapolis Star is reporting this afternoon, in a story on its website by Kevin Corcoran, that:

The State Ethics Commission voted to fine a deputy state auditor $750 today after he acknowledged accepting meals and a round of golf from insurance companies seeking a lucrative state contract.

Deputy Auditor Jeffrey Heinzmann waived his right to a public hearing and agreed to the fine and ethics training to settle the case, which began in December with an anonymous complaint.

Heinzmann, who is the office’s chief legal counsel, also agreed to repay ING and Great West Retirement Services $220.14 for meals and golf they bought him during a September convention in Salt Lake City.

Great West recently won the state contract from the auditor’s office to manage more than $600 million in retirement money for nearly 31,000 state and local government employees and retirees.

Earlier today Corcoran had this story, that began:
A $1,500 bribe paid in an attempt to win contracts worth up to $180,000 to run state park saddle-barn concessions has sparked the first criminal charge from Indiana's newly created inspector general, authorities announced Wednesday.

The investigation began in March after Teresa M. Marshall, a 23-year Department of Natural Resources employee, told her supervisor she had been offered money to help a Metamora man win the state contracts.

The arrest comes as the Republican-controlled General Assembly weighs the fate of Senate Bill 18, Gov. Mitch Daniels' legislation to permanently establish the inspector general's office. * * *

Marion County Prosecutor Carl Brizzi said the bribery case shows the need for the state government watchdog office, led by former Clay County Prosecutor David Thomas. Brizzi filed the bribery charge at Thomas' request after a brief State Police investigation. * * *

[Thomas] praised Marshall, a $30,498-a-year DNR concessions specialist, for her willingness to help investigators. Court records state Marshall recorded the transaction with Adkins using digital audio equipment concealed in her purse.

Adkins admitted he offered Marshall $1,000 earlier in the year, but she did not respond. Marshall, at the urging of State Police, called him back to see if the "offer was still on the table," court records show.

Their meeting took place March 31 in the Indiana Government Center South cafeteria while other state employees ate lunch nearby. Adkins told State Police he paid Marshall with a $1,000 check and $500 in cash. In a phone interview from his Franklin County ranch, Adkins said he was entrapped.

Posted by Marcia Oddi on Thursday, April 14, 2005
Posted to Indiana Government

Ind. Decisions - ’02 murder conviction overturned on appeal

"’02 murder conviction overturned on appeal" is the heading to this story today in the Fort Wayne Journal Gazette. Niki Kelly writes:

The Indiana Court of Appeals on Wednesday reversed a Leesburg man’s murder conviction in the 2002 killing of his ex-wife’s new husband on the basis of faulty instructions to the jury.

Jason Paul Davidson, 35, was sentenced to 55 years in prison in October 2003.

But the appellate court – in an opinion written by Appeals Court Judge Paul Mathias, a former Allen Superior Court judge – said the court committed reversible error in not accepting a proposed jury instruction from Davidson’s attorney. * * *

During trial, Davidson’s defense argued a combination of factors caused him to involuntarily shoot Creekmore.

Wednesday’s decision said in most cases there is no issue of whether someone acted voluntarily in committing a crime, but when evidence raises the issue of voluntariness the state must prove beyond a reasonable doubt that the defendant acted voluntarily.

At trial, Davidson’s attorneys said a combination of Zoloft and Ambien caused him not to appreciate his conduct as wrong and that he was in a “disassociative state” and “neuro-hijacked” to act without thinking.

But when Davidson sought a jury instruction requiring the jury specifically find he acted voluntarily in killing Creekmore, the judge rejected it.

“Defendants have a constitutional guarantee to have every element of their offense proved beyond a reasonable doubt by the state,” the ruling said.

“The principle is so essential to our system of justice it is referred to as the fundamental principle.”

The decision sends the case back to Kosciusko County for a new trial, while noting that a new jury is free to reject Davidson’s claim that he acted involuntarily.

Access the ILB summary of, and link to the decision in Jason Paul Davidson v. State of Indiana (4/13/05 IndCtApp) here (2nd decision).

Posted by Marcia Oddi on Thursday, April 14, 2005
Posted to Ind. App.Ct. Decisions

Ind. Law - Streamlined permit bill signed

The Indianapolis Star website has an AP story this afternoon that reports:

Gov. Mitch Daniels signed a bill into law today that allows pre-permitting for industrial sites, legislation he hopes will spur economic development by making sites "shovel ready" for developers who want to move in on short notice.

The law establishes a site development center to help businesses go through the permitting process and to allow local communities to get sites ready for development.

Changes in the state's permitting system has been a priority for Daniels, who asked for the pre-permitting authority in his first State of the State address.

Daniels said the new law would help communities get development sites ready so that companies could move in on very short notice.

"We'll be very actively urging communities to use this cutting-edge tool to get sites in their areas ready," he said.

He has described Indiana's previous permit system as complicated and slow, saying it discouraged development by costing businesses time and money. He said some businesses might have decided to locate in other states, such as Kentucky, with pre-permitting because the development site would be ready more quickly.

The bill is House Bill 1653, which creates a "shovel ready site development center" within the Indiana Development Finance Authority (IDFA) (IC 4-4-11), a quasi-public entity.

There really isn't that much to the new law. A new section 44 (IC 4-4-11-44) is added, reading:

(a) As used in this section, "permit"
means any state agency permit, license, certificate, approval,
registration, or similar form of approval required by a statute or
administrative rule.
(b) The shovel ready site development center is established
within the authority. The center has the following duties:
(1) Providing comprehensive information on permits required
for business activities in Indiana, and making this information
available to any person.
(2) Working with other state government offices,
departments, and administrative entities in assisting
applicants in obtaining timely and efficient permit review and
the resolution of issues arising from permit review.
(3) Encouraging the participation of federal and local
government agencies in permit coordination.
A new section 45 is added:
(a) As used this section, "permit"
means any local, state, or federal agency permit, license, certificate,
approval, registration, or similar form of approval required by statute, administrative rule, regulation, ordinance, or resolution.
(b) In addition to the duties set forth in section 44 of this
chapter, the shovel ready site development center shall, in
cooperation with political subdivisions, create programs to enable
political subdivisions to obtain all or part of any permits to create
sites that are ready for economic development.
Note the language I emphasized above - "other state government offices". But the IDFA is "a body politic and corporate and an independent instrumentality exercising essential public functions." It is not a state government office, or it would not be able to issue bonds without binding the full faith and credit of the State of Indiana.

Normally a law like this that simply sets out responsibilites in general terms would be fleshed out by the entity itself through the adoption of rules. That may well be what will happen here. It is particularly noteworthy, however, that under IC 4-4-11-15(a)(2), the IDFA may "(2) Without complying with IC 4-22-2, adopt, amend, and repeal bylaws, rules, and regulations * * * necessary or convenient to regulate its affairs and to carry into effect the powers, duties, and purposes of the authority and conduct its business." This may mean no need for public comment or even, perhaps, notice and publication.

The environmental permitting responsibilities of IDEM, as well as the requirements of other state agencies such as natural resources, health, fire marshall, building code, etc., as well as local and federal requirements (including zoning, wetland, etc.), have not been directly impacted by this new law. Rather, another layer, presumably a coordinating layer, has been vaguely superimposed atop.

In an ILB entry in February (Feb. 23) I wrote about Senate Bill 259. Here is a quote from that entry:

As I read it, this bill would bring "instrumentalities of state government" - quasi-state entities such as the State Office Building Commission, Indiana Economic Development Corporation, Indiana Health Facility Financing Authority, etc. under the provisions of IC 4-22-2, relating to the adoption of administrative rules by "state agencies" (now to include "instrumentalities of state government").
However, SB 259, which passed the Senate 48-0, never made it out of House Committee.

Posted by Marcia Oddi on Thursday, April 14, 2005
Posted to Indiana Law

Ind. Decisions - Court of Appeals posts four today

Sarah Bodem v. Rebecca Bancroft (2/28/05 IndCtApp) [Torts; Procedure]
[Initially NFP]
Sullivan, Judge

Appellant, Sarah Bodem, brings this interlocutory appeal challenging the trial court’s order granting Appellee Rebecca Bancroft’s Motion to Consolidate Cases for Trial. The sole issue presented for our review is whether the trial court abused its discretion in doing so. We affirm.

Bodem and Bancroft were involved in an automobile accident on October 17, 2000. As a result, Bancroft filed a complaint for personal injuries against Bodem in the Madison Circuit Court on August 6, 2001 (“the Bodem action”). On February 1, 2001, Bancroft was involved in an accident with Marie Ellen Beck. Ms. Bancroft filed a second complaint for personal injuries against Beck in the Madison Circuit Court on August 24, 2001 (“the Beck action”).
On August 18, 2003, Bancroft filed a motion to consolidate the Bodem action with the Beck action. Bodem, along with Beck, filed an objection to Bancroft’s motion to consolidate. * * *

Upon appeal, Bodem argues that the court abused its discretion in ordering consolidation because there are no common issues of law or fact, let alone similar determinative facts and issues, between the Bodem action and the Beck action. Bodem first notes that although the accidents which precipitated both actions were rear-end collisions, the accidents occurred on separate days (three and a half months apart) and in different counties. * * *

For consolidation to be proper, it is only necessary that the actions involve a common question of law or fact. Trial Rule 42 does not contain the “same transaction or occurrence” requirement as is found in the rule governing joinder. We cannot deny that if presented with an issue under T.R. 20, we would conclude, as the court in Grove did, that joinder of Bodem and Beck as defendants in the same action would have been improper as there is no logical relationship between the two accidents, except for injury to the same plaintiff. Nevertheless, here, we must only review the trial court’s determination that there is a common issue of law and fact sufficient to justify consolidation. As noted, there is a common question of fact as to the injuries sustained by Bancroft. The judgment of the trial court is affirmed.
NAJAM, J., and BARNES, J., concur.


Mark Kelley v. State of Indiana
(4/14/05 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge
Mark Kelley appeals from his conviction for Possession of Methamphetamine as a Class C felony. See footnote He presents one main issue for our review, whether a statement he made to police and evidence seized following that statement should have been admitted at trial. His argument also presents a second issue which we must resolve, whether testimony from a motion to suppress hearing may be considered in determining whether evidence is admissible during trial. We affirm. * * *
BAILEY, J., and MATHIAS, J., concur.
Donald Edward Hill v. State of Indiana (4/14/05 IndCtApp) [Criminal Law & Procedure]
Barnes, Judge
Donald Hill appeals his conviction and sentence for Class B felony dealing in a narcotic. We affirm. * * *

Although Hill asserts that the trial court’s sentencing order makes no findings as to aggravators or mitigators, we examine both the written sentencing order and the trial court’s comments at the sentencing hearing to determine whether the trial court adequately explained the reasons for the sentence. See Boner v. State, 796 N.E.2d 1249, 1255 (Ind. Ct. App. 2003). At the sentencing hearing, the trial court recognized several aggravators before it enhanced Hill’s sentence. One such factor was Hill’s criminal history, which the trial court emphasized. Hill served time in a juvenile facility in Florida for burglary and was convicted of aggravated robbery in Tennessee. In Indiana, Hill was convicted of Class D felony possession of stolen property. A single aggravating factor is adequate to justify an enhanced sentence. Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002). Thus, Hill’s enhanced sentence is proper based on his criminal history.

Conclusion. The trial court properly admitted evidence obtained during the officers’ warrentless search of Hill’s trailer, his statements to the officers were voluntarily made, there is sufficient evidence to support his conviction, and his sentence is proper. We affirm. Affirmed.
MAY, J., and DARDEN, J., concur.


Nance and Pipe Creek Sand & Gravel v. Miami Sand & Gravel, LLC
(4/14/05 IndCtApp) [Torts]
Barnes, Judge
John and Georgia Nance appeal the trial court’s judgment holding them jointly and severally liable, along with their son and daughter-in-law, Nick and Tonia Nance, to Miami Sand and Gravel, LLC (“Miami”) for damages arising out of a failed business enterprise. We affirm in part, reverse in part, and remand. * * *

Conclusion. Our resolution of the various issues requires us to delineate carefully the effect of our decision. John and Georgia are only liable in conversion to Miami for the $524 they temporarily deposited in the “Pipe Creek” account, and the amount of damages is the interest accrued during the period of conversion, not the full $524. We remand for calculation of that amount, for which John, Georgia, Nick, and Tonia may be jointly and severally liable. The judgment against John and Georgia for conversion related to the “Our Miami” account and for trespass is reversed in its entirety as to them, but remains as to Nick and Tonia. The $20,000 contempt fine is reversed in its entirety as to all parties because of a lack of evidence or findings that Miami suffered damages in that amount as a result of the purported contempt. We reverse the attorney fees award against all parties and remand to give Miami an opportunity to allocate attorney fees related only to its conversion claims. The award of “costs,” except for $104 in court costs, is reversed with respect to all parties. The permanent injunction against John and Georgia must be modified in accordance with this opinion, but is otherwise affirmed. The judgment is also affirmed with respect to the $63,543 entered against only Nick, Tonia, and N & N. Affirmed in part, reversed in part, and remanded.
MAY, J., and DARDEN, J., concur.

Posted by Marcia Oddi on Thursday, April 14, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Lilly patent decision expected at 4:50 p.m. Indy time

The South Florida Business Journal is reporting here:

The U.S. District Court for the Southern District of Indiana put the time Judge Richard Young is to render his decision at 5:50 p.m., Eastern Daylight Time. The case is Eli Lilly and Co. v. Zenith Goldline Pharmaceuticals (Ivax), et al.
[More] A story just posted on the Indianapolis Star website includes this speculation:
In a decision seen as favorable to Lilly, the [Court of Appeals for the Federal Circuit] vacated an earlier decision by a court panel, which declared a patent invalid for the antidepressant Paxil because that drug had been given to patients in a clinical trial before the patent was applied for.

U.S. District Court Judge Richard L. Young, who presided over the 2004 nonjury trial involving Zyprexa's patent, might be influenced by the appeals court's ruling as he considers a similar claim in the case over Lilly's No. 1 drug.

The three generic drug firms challenging the Zyprexa patent, which runs until 2011, claim the patent was essentially disclosed by the "public use" of Zyprexa in an early clinical trial.

One possible reason Young waited nearly 15 months before issuing his ruling was to see how the appeals court ruled in the Paxil case, said Gary D. Street, a Cincinnati patent attorney who tracked the 12-day Zyprexa trial last year for Wall Street investment firms.

"Since he (Young) was ready to go (with his decision) so soon after that (Paxil) decision, I'm pretty sure that was what he was sitting there waiting on," Street said.

The Star story also reports:
Young has said he will release his long-awaited decision at 4:50 p.m. today on the court's Web site.
That IS newsworthy, as the SD Ind. is normally very slow in posting its opinions - posting is selective and cases normally are several weeks to more than a month old before posting, if at all. Here is the main page for the SD Indiana, and here is the page where the various judges' opinions are posted. The judges are in alphabetical order; scroll down almost to the end for Judge Young, who has not posted many decisions in the past.

Posted by Marcia Oddi on Thursday, April 14, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - 7th Circuit posts three today

Rodriguez, Harry v. Briley, Kenneth (ND Ill.) [3 pp.]

Before BAUER, POSNER, and EVANS, Circuit Judges.
POSNER, Circuit Judge. * * * At some point, refusal to eat might turn suicidal and then the prison would have to intervene. E.g., Matos ex rel. Matos v. O’Sullivan, 335 F.3d 553, 557 (7th Cir. 2003). Likewise if noncompliance with the rule were a product of insanity. Both situations are illustrated by Sanville v. McCaughtry, 266 F.3d 724, 729-34 (7th Cir. 2001). Neither is present here. AFFIRMED.

Huang, Xiu Ping v. Gonzales, Alberto R. (Board of Immigration Appeals) [12 pp.]

Before KANNE, WOOD, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Chinese citizen Xiu Ping Huang applied for asylum, claiming that she would be persecuted because of her membership in an illegal Catholic church if she returned to China. An immigration judge denied Huang’s application after a hearing because he found that she was not credible and had failed to corroborate her testimony, even though the judge acknowledged that members of underground Catholic churches in China face widespread persecution. During the hearing, however, the immigration judge repeatedly interrupted the examination conducted by Huang’s attorney and questioned Huang extensively about her Catholic beliefs and practices. In discrediting Huang, the immigration judge relied heavily on what he thought were unsatisfactory answers to his questions—all of which were based on information outside of the record. Our concerns about the judge’s conduct during the hearing lead us to conclude that his decision is not supported by substantial evidence and, accordingly, we grant Huang’s petition for review.

USA v. Macedo, Gregorio (ND Ill.) [27 pp.]

Before FLAUM, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Gregorio Macedo and Victor Hugo Contreras were convicted of various drug offenses. Defendant Macedo alleges several violations of Apprendi v. New Jersey, 530 U.S. 466 (2000), which he contends render his convictions and sentence infirm. He also argues that the government lacked sufficient evidence to support his convictions. Defendant Contreras argues that evidence of prior bad acts was improperly admitted in violation of Rule 404(b) of the Federal Rules of Evidence. The government also appeals the district court’s decision to grant defendant Contreras a one point downward departure based on his alien status. We affirm both convictions. However, because we find that the district court erred in its decision to downward depart, we must remand defendant Contreras for resentencing. In addition, in response to Macedo’s petition for rehearing, we vacate his sentence as well and remand his case for resentencing consistent with the Supreme Court’s recent decision in United States v. Booker, 125 S. Ct. 738 (2005).

Posted by Marcia Oddi on Thursday, April 14, 2005
Posted to Ind. (7th Cir.) Decisions

Law - Goodbye to Privacy

William Safire reviews the Robert O'Harrow Jr. book, No Place to Hide, in the April 10th NY Times Book Review section. Some quotes:

YOUR mother's maiden name is not the secret you think it is. That sort of ''personal identifier'' being used by banks, credit agencies, doctors, insurers and retailers -- supposedly to protect you against the theft of your identity -- can be found out in a flash from a member of the new security-industrial complex. There goes the ''personal identifier'' that you presume a stranger would not know, along with your Social Security number and soon your face and DNA.

In the past five years, what most of us only recently thought of as ''nobody's business'' has become the big business of everybody's business. * * *

The computer's ability to collect an infinity of data about individuals -- tracking every movement and purchase, assembling facts and traits in a personal dossier, forgetting nothing -- was in place before 9/11. But among the unremarked casualties of that day was a value that Americans once treasured: personal privacy.

The first civil-liberty fire wall to fall was the one within government that separated the domestic security powers of the F.B.I. from the more intrusive foreign surveillance powers of the C.I.A. The 9/11 commission successfully mobilized public opinion to put dot-connection first and privacy protection last. But the second fire wall crumbled with far less public notice or approval: that was the separation between law enforcement recordkeeping and commercial market research. Almost overnight, the law's suspect list married the corporations' prospect list.

The hasty, troubling merger of these two increasingly powerful forces capable of encroaching on the personal freedom of American citizens is the subject of two new books.

Robert O'Harrow Jr.'s ''No Place to Hide'' might just do for privacy protection what Rachel Carson's ''Silent Spring'' did for environmental protection nearly a half-century ago.

Posted by Marcia Oddi on Thursday, April 14, 2005
Posted to General Law Related

Ind. Courts - Marion County Prosecutor announces office reorganization

The Indianapolis Star reports today:

Marion County Prosecutor Carl Brizzi announced an office reorganization Wednesday in the wake of a sexual harassment investigation within his office.

Brizzi named Lisa Borges his chief of staff and chief trial deputy. She will replace John Commons, a supervisor who resigned Friday amid allegations that he sexually harassed a female employee.

Commons, who had been Brizzi's chief of staff, submitted a one-sentence letter announcing he was leaving the $98,000-a-year job. Commons worked in the office about 27 years, through four prosecutors.

Borges has been with the prosecutor's office since 1989 and has supervised the sex crimes, child abuse, domestic violence and Misdemeanor and D Felony divisions.

David Wyser will become deputy chief of staff and deputy chief of the Trial Division. He joined the prosecutor's office in 2001 and has served as chief of the felony division.

Brizzi put Barbara Crawford in charge of investigations, with the Marion County grand jury investigators and criminal divisions reporting to her. She has been with the office since 1991.

Helen Marchal was named associate counsel to the prosecutor. She will be in charge of community prosecution, legislative affairs, human resources and Adult Protective Services.

Posted by Marcia Oddi on Thursday, April 14, 2005
Posted to Indiana Courts

Ind. Courts - Deputy prosecutor to replace Kouros, sources say

"Deputy prosecutor to replace Kouros, sources say: Daniels expected to pick Diane Boswell as judge," is the headline to this story in the Munster (NW Indiana) Times. Some quotes:

It's no coincidence Deputy Prosecutor Diane Boswell headed to Indianapolis in time for Gov. Mitch Daniels' news conference at 3 p.m. today to announce his pick for Lake Criminal Court Judge, Republican sources said.

Boswell is the governor's choice to fill the spot left vacant in Courtroom 3 by the removal of Joan Kouros, a source close to the judiciary said.

The 56-year-old, first-time applicant for judge was one of three names sent to Daniels on Feb. 14 for consideration. Court magistrates Glenn Commons and Kathleen Sullivan rounded out the nominees.

The new judge will face a crowded docket laced with much-publicized cases. * * *

Boswell impressed the Lake County nominating committee members with her interview skills, background in social work and maturity.

The seat became open after an almost four-year battle to remove Kouros from the bench because she was slow in completing routine paperwork and adversely affected cases.

Posted by Marcia Oddi on Thursday, April 14, 2005
Posted to Indiana Courts

Ind. Law - Huge telecom bill could deploy broadband, deregulate basic telephone service

Rick Yencer has a lengthy story today in the Muncie Star-Press about the now "huge Senate Bill 381." Some quotes:

Broadband development and telecommunication deregulation have been joined in the huge Senate Bill 381 that passed out of the Indiana House on Monday and is headed to a conference committee for review. That was after House Bill 1518 which would have deregulated telecommunications died when House Democrats walked out last month.

The 74-22 vote reflected strong support for a statewide broadband system and preventing the Indiana Utility Regulatory Commission from regulating broadband and information services and eventually ending the commission's oversight of pricing and terms of basic telecommunications service.

However, consumer groups and the telecommunications industry have concerns about the final version of the bill.

"I don't think it is going to stay in its current version," said Sen. David Ford, R-Hartford City, chairman of the Senate Economic Development and Technology Committee. "We have plenty of time to negotiate that."

Ford, who could be conference committee chairman on the bill, has been a proponent of broadband deployment and proposed state funding of broadband, especially in rural areas of the state. Ford authored the original SB 381 that also called for state funding of broadband system in underserved areas.

Tim Oakes, executive director of the Indiana Cable Telecommunications Association, along with other cable providers expressed opposition to a state-funded broadband infrastructure.

"We are confident that any final version will remove state funded competition against the private sector, be pro-deregulatory and assistant in the access of broadband for Hoosiers who have absolutely no access now," said Oakes.

Rep. Tom Saunders, R-New Castle, voted against the bill, saying, "I just do not believe the state needs to be in the telecommunications business."

Saunders was also concerned that too many issues, ranging from deregulating basic telephone service to the need to extend broadband to rural communities, confused many of the issues.

"There is just too much in there to vote for," said Saunders, who expected some issues to taken out in conference.

Consumer groups like Citizens Action Coalition said the measure was spoiled by efforts to include legislation to deregulate telephone service backed by industry giants like SBC and Verizon.

"Broadband is vital to our state's economy, but deregulated, rising telephone rates for incumbent monopolies like SBC will hurt Hoosier consumers and our economy," said Grant Smith, CAC's executive director.

The CAC and other consumer groups also think it's important that the IURC remain as a referee between giant telephone companies and smaller providers since SBC and Verizon are expanding broadband and wireless services.

Rep. Jack Lutz, R-Anderson, a co-author of the telecommunication deregulation legislation, did not think ultimately deregulating basic telephone service by the end of the decade would raise prices.

Michehe McNeil of the Indianapolis Star has a story headlined "Deregulation of telecoms is uncertain: Senate bill originally focused on broadband now flash point." Some quotes:
With less than three weeks to go in the legislative session, consumer groups, lawmakers and telephone companies are still at odds over who should control the price of local phone service -- the state or market forces.

Traditional telephone companies, which have been under the thumb of state regulators, say deregulating their industry is about leveling the playing field, competing with other communications companies and bringing more jobs to Indiana.

Consumer groups say it's about bigger phone bills and bigger corporate profits at the expense of Hoosiers.

"It's about being able to afford basic phone service," said Nancy Griffin, director of AARP Indiana, which has more than 800,000 members in the state. "That's crucial for a lot of our older members."

But there's growing sentiment in the legislature that the communications world is changing rapidly while Indiana's laws are not. And that theme will guide lawmakers as they try to reach a compromise on telecom deregulation by April 29, when the legislative session must end. If a compromise is reached, the House and Senate will have to vote on the final version. * * *

Competition for data and phone business is fierce among cell phone companies and cable providers. Even electric companies are getting in the communications busi-ness, where they are largely unregulated and are chipping away at the customer bases of traditional phone companies.

Other states are acknowledging this trend. In the last month, Idaho and Iowa have approved telecom deregulation legislation that would let companies gradually set their own prices in those states.

Here, the Indiana Utility Regulatory Commission regulates prices and service quality for the traditional telephone companies -- SBC, Verizon and Sprint.

But that would change under the latest version of Senate Bill 381, legislators' latest attempt at telecom deregulation. This proposal would allow traditional phone companies to set their own prices once 50 percent of households in an area have access to broadband, which allows people to have high-speed Internet service.

The lawmaker behind the new idea, Rep. Michael Murphy, R- Indianapolis, said using the broadband requirement as a trigger accomplishes two goals: ensuring that consumers have other communications options and encouraging telephone companies to deploy broadband to rural areas in exchange for the freedom to set their own prices.

Full deregulation would occur -- so long as the 50 percent broadband test is met -- by 2010. * * *

Posted by Marcia Oddi on Thursday, April 14, 2005
Posted to Indiana Law

Wednesday, April 13, 2005

Ind. Gov't. - Lack of creationism in biology books concerns board

"Lack of creationism in biology books concerns board" is the headline to a story today in the Munster (NW Indiana) Times. Some quotes:

KOUTS | Concerned board members delayed the approval of biology textbooks for East Porter County Schools on Monday evening because the books contained only material on evolution and excluded other theories.

"I personally believe that creationism" -- the belief in the literal interpretation of the Biblical story of creation -- "ought to be, I think that ought to be out there as something that's taught," board Vice President Tim Bucher said. "I think our students oughtta be aware of it."

The textbooks were presented to the board after a two-month review process by a committee of parents, teachers and students. The group, formed each year to review books from one of the six state subjects, looked at all of the state-approved selections, none of which included creationism, and selected the titles they felt would best serve the students.

Posted by Marcia Oddi on Wednesday, April 13, 2005
Posted to Indiana Government

Ind. Decisions - Court of Appeals posts three today

David Reed v. Hoosier Health Systems, Inc., et al. (4/13/05 IndCtApp) [Procedure]
Mathias, Judge

David Reed’s (“Reed”) attorneys were disqualified from representing him in Marion Superior Court. Reed brings this interlocutory appeal, raising the following restated issue for review: Whether the trial court abused its discretion when it disqualified Reed’s attorneys. Concluding the trial court was within its discretion, we affirm. * * *

The trial court did not abuse its discretion when it dismissed Reed’s attorneys. Affirmed.
DARDEN, J., concurs.

BARNES, J., concurs in result with opinion. Although I concur in result, I disagree with the majority’s analysis of Tabbert Hahn’s obligation to withdraw. The majority states that conflicts may not be avoided by withdrawal. I agree that there is the potential danger of lawyers dropping a client “‘like a hot potato’” in favor of a more desirable client. Universal City Studios, Inc. v. Reimerdes, 98 F. Supp 2d. 449, 453 (S.D. N.Y. 2000) (citation omitted). However, I believe withdrawal must be available to allow lawyers to remedy a conflict that arises after representation has been undertaken. This is in line with Comment 4 of Indiana Rule of Professional Conduct 1.7, which provides, “If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the informed consent . . . .”

More importantly, however, I write separately to emphasize that this circumstance is one in which we must be wary. The disqualification of attorneys on conflict of interest grounds is a matter that is increasingly being done by members of the bar as a tactical device, in some instances with little to do with our professional ethics. In my opinion, allowing advocates to utilize motions to disqualify as purely strategic tools minimizes the importance of Indiana Rule of Professional Conduct 1.7(a) and it warnings, which are essential to the ability of lawyers to represent the best interests of their clients. Despite my concerns, however, I must concur given our standard of review in this case. I do not believe that the trial court’s granting of the Defendant’s motion to disqualify amounts to an abuse of discretion. [emphasis added]

Jason Paul Davidson v. State of Indiana (4/13/05 IndCtApp) [Criminal Law & Procedure]
Mathias, Judge
Jason Davidson (“Davidson”) was convicted of murder in Kosciusko Circuit Court. Davidson appeals, raising the following dispositive issue for review: Whether a material element was omitted from Davidson’s jury instructions. Concluding a material element was omitted, we reverse and remand for a new trial. * * *

Davidson’s jury instructions relieved the State of its burden of proving an element of Davidson’s charged offense beyond a reasonable doubt and constituted reversible error. Reversed and remanded for a new trial.
BAILEY, J., and SULLIVAN, J., concur.

Lyndon P. Abran v. State of Indiana (3/16/05 IndCtApp) [Criminal Law & Procedure]
[Initially NFP]
Crone, Judge
* * * We have previously determined that “the multiple convictions that the extensive criminal history comprises have already been proven beyond a reasonable doubt and are thus exempt from the Apprendi rule as clarified by Blakely.” Carson v. State, 813 N.E.2d 1187, 1189 (Ind. Ct. App. 2004), opinion on reh’g. Further, we have previously held that two of the other factors considered by the trial court—Abran’s need for rehabilitation best provided by incarceration and the likelihood that he will commit another crime—are simply derivative of his criminal history and, as such, do not require proof beyond a reasonable doubt. Id. Therefore, three of the five aggravating factors cited by the trial court are exempt from the Blakely analysis. We note that “a single aggravating circumstance is adequate to justify a sentence enhancement.” Id. (citing Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002)). Even if our supreme court were to find that Indiana’s sentencing scheme runs afoul of the Sixth Amendment for the reasons articulated in Blakely, we conclude that this finding would have no effect on Abran’s sentence. Affirmed.
RILEY, J., and ROBB, J., concur.

Posted by Marcia Oddi on Wednesday, April 13, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court posts one today

Peggy J. Haville v. Michael Haville (4/13/05 IndSCt) [Family Law]
Dickson, Justice

Peggy Haville ("former wife") appeals from the trial court's dismissal of her petition for modification of the dissolution decree approving the parties' settlement agreement under which Michael Haville ("former husband") was to pay maintenance of $400.00 per month for the remainder of the wife's life. The Court of Appeals affirmed in a published decision. Haville v. Haville, 787 N.E.2d 410 (Ind. Ct. App. 2003). We granted transfer, 804 N.E.2d 755 (Ind. 2003), and now hold that maintenance may be ordered that continues beyond the death of the obligor, but that the trial court lacked the authority to modify the parties' specific agreement here providing for fixed spousal maintenance not subject to modification. * * *

The maintenance agreement in this case, however, goes beyond merely requiring pa yment for the lifetime of the former wife: it also prohibits future modification claims. The agreement provides that the agreement settles all "spousal maintenance rights" and releases "all claims and rights which either ever had, now has or might hereafter have against the other by reason of their former relationship as Husband and Wife." Because Indiana Code § 31-15-7-3 provides that spousal maintenance authorized by statute may be modified, the trial court lacked the authority to order maintenance payments that were not subject to modification. Thus lacking the power on its own to order non-modifiable spousal maintenance, the trial court lacked authority to thereafter modify the maintenance obligation created by the previously approved settlement agreement. Voigt, 670 N.E.2d at 1280.

Transfer having previously been granted, we affirm the trial court order dismissing the petition for modification of maintenance.

Sullivan and Boehm, JJ., concur. Shepard, C.J., concurs in result with separate opinion in which Rucker, J., joins.

Shepard, C.J., concurring in result. I think the majority correctly affirms the trial court’s decision that the order for maintenance entered by the court in this case at the request of the parties is not subject to revision except by their mutual consent. On the other hand, I think the grounds on which this holding rests wrongly decide an important subsidiary question: does Indiana law authorize orders for maintenance that continue even after the obligor dies? * * *

Because I conclude that the legislature did not intend to authorize judges to order maintenance beyond the death of the obligor, I think the majority gets to the right result. The parties’ agreement “for the maintenance of either of them,” lasting even after the husband’s death, submitted by them under section 10 and incorporated into the decree, can only be modified by their mutual assent. This rule reflects adherence to provisions in section 10(c), and it also represents good judicial policy. If it were the case that courts could modify such agreements after the decree is entered, how could the judge know with confidence what got traded for what during the course of the earlier negotiations? If one party is to be granted more of something, should that party be obliged to give up part of something else obtained in the course of achieving a settlement? Even if judges could redesign settlements after the fact, a legal system that sanctioned such redesigning would be one in which parties settled far less often than they do now.

Posted by Marcia Oddi on Wednesday, April 13, 2005
Posted to Ind. Sup.Ct. Decisions

Environment - 4,500-cow dairy farm in Ohio receives state permits

"4,500-cow dairy farm receives state permits" is the headline to a story today in the Toledo Blade. The story, by Jane Schmucker, is valuable in that it gives a good look at some of the economic issues involved. Some quotes:

A proposed 4,500-cow dairy farm in Hardin County, which would be the largest in Ohio and among the 100 largest in the country, received its state permits this week, and developers say construction will start within two months. "It's a very big deal," Steve Snowden, the county's economic development director, said of the impact on his rural, agricultural county.

The Ohio Department of Agriculture announced yesterday that it had approved the permits.

The dairy, to be called Van Deurzen Dairy LLC and located about 75 miles south of Toledo, should produce 37,000 to 38,000 gallons of milk a day, a total of six semi-tanker loads. Annual sales should average at least $13.5 million, but could be as high as $15 million with high prices and production, dairy experts estimated.

The investment in such a dairy likely will range from $25 million to $30 million, according to industry experts.

The dairy is to be built by Walter Van Deurzen and his family, who live in the Netherlands, but plan to move to county to operate it.

At capacity, it probably will employ 35 to 45 people full time in addition to the family, said Cecilia Conway, a spokesman for the developer, Vreba-Hoff Dairy Development Inc., based in Wauseon. But other dairy experts have predicted the number of employees or independent contractors will be closer to 75. Most workers will be paid $7 to $10 an hour, and managers will be paid $33,000 a year or more, Ms. Conway said. * * *

Vreba-Hoff is controversial for its work developing sizable dairy farms for new European immigrants in western Ohio, Michigan, and Indiana, and has faced organized opposition, especially in Wood County.

When the firm announced plans for the Van Deurzen Dairy last year, it underestimated the number of heavy truck trips the dairy would bring to rural roads, which are not built for such traffic.

Hardin County Commissioner Jerry Cross said opinions on the proposed dairy appear to be split in his area.

Most farmers support the dairy, he said. Dairies buy corn and hay from farmers, giving them an additional market for corn - one of the area's biggest crops - and creating a significant market for hay, which has not been a large crop locally.

Some agricultural experts see more large dairy farms as a way to help local crop farmers stay competitive at a time when they face rising land prices and increased competition from South America.

But many village residents - the dairy is to be located south of the village of Alger, population 888 - worry about the possibility of water contamination or other environmental problems, Mr. Cross said. To him, whether the dairy will be an economic engine or a nightmare for the county will all come down to management, he said. He gives a local example.

The former Buckeye Egg Farm L.P. gave large farms a bad name in Ohio with repeated environmental violations. But Ohio Fresh Eggs, which has taken over Buckeye's hen houses, some of which are in Hardin County, is seen far more positively, Mr. Cross said.

Posted by Marcia Oddi on Wednesday, April 13, 2005
Posted to Environment | Indiana economic development

Ind. Gov't. - Judge heads ethics commission staff

The Indianapolis Star website is reporting this afternoon, in a story headlined "Judge to head ethics commission":

Mary Lee Comer has been named executive director of the Indiana State Ethics Commission, Gov. Mitch Daniels announced today [Comer started her position on April 11].

Comer served 18 years as a Hendricks Superior Court judge and four years as a State of Indiana senior judge. She'll oversee training, advising and enforcing ethics laws for state employees. Daniels established new ethics rules in January when he signed Executive Order 05-12, and other ethics provisions are outlined in SB 18, which passed unanimously in the House and is awaiting conference committee action.

Comer will report to the state's new Inspector General, who is responsible for pursuing fraud, waste and abuse in state government.

"Through upgraded leadership from Judge Comer, and a watchdog with teeth in the Inspector General, we are creating a culture that encourages state employees to seek advice and report wrongdoing, as well as an understanding that rules will be enforced and unethical behavior is unacceptable," said Daniels in a prepared statement. "Judge Comer is another outstanding Hoosier who is willing to sacrifice to join our new crew and its program of reform."

Since 2001, Comer has been a senior judge for the state assigned to eight courts in Central Indiana. She also has taught ethics courses to members of the judiciary in Indiana and Tennessee.

Here is the link to the Indiana State Ethics Commission commissioners and staff page. As of today, it shows David Thomas as director, "responsible for overseeing all agency administrative, legislative and legal activity, plus the supervision of staff." There are four other employees listed. The Commission itself has five members.

Posted by Marcia Oddi on Wednesday, April 13, 2005
Posted to Indiana Government

Ind. Decisions - Court to Rule on Lilly Zyprexa Patent

Reuters is reporting here this afternoon:

Eli Lilly and Co. said on Wednesday that a federal judge will issue his long- awaited decision on the validity of patents for Lilly's multibillion-dollar schizophrenia drug Zyprexa on Thursday afternoon. Lilly said it remains confident that Zyprexa's patent is valid and that the challenges brought by generic drugmakers are without merit.

While Lilly expects to prevail in the case, it said in a statement that an unfavorable outcome "would have a material adverse impact on the company's consolidated results of operations, liquidity, and financial position." * * *

The validity of the Zyprexa patent was challenged by Zenith Goldline Pharmaceuticals, a unit of Ivax Corp. and the first company to file an application to sell a generic version of Zyprexa. Similar lawsuits were later filed by Indian generic drug maker Dr. Reddy's Laboratories and Israel's Teva Pharmaceuticals .

The cases were consolidated before Judge Richard Young in U.S. District Court for the Southern District of Indiana in Indianapolis, where Eli Lilly is headquartered.

The trial was completed more than a year ago and the sides have been awaiting Young's ruling ever since.

The pivotal decision will come more than four years after a successful patent challenge virtually wiped out revenue from their previously best-selling antidepressant Prozac.

The generic drug makers argued that the Zyprexa patent in question was too similar to a previous patent held by Lilly and should be declared duplicative and invalid. They also challenged a toxicology study done on dogs that Lilly used to back up its argument for acquiring the patent on the drug, which has been on the market since 1996.

An appeal is expected from whichever side loses the patent dispute, meaning the battle could well drag on for another year or two.

For background, see this 2/8/04 ILB entry, titled "Federal Judge Young featured in STAR story today about Lilly bench trial"," and this 2/13/054 entry titled "Lilly Trial Goes to Judge."

Posted by Marcia Oddi on Wednesday, April 13, 2005
Posted to Ind Fed D.Ct. Decisions

Environment - Turning hog waste into black gold in Illinois

"Pig farm strives to breathe easy with suburbs: Hog waste turned into no-odor compost" is the headline to this story today in the Chicago Tribune. Some quotes from the lengthy article:

When pork producer Bill Dumoulin sits on his combine and gazes across his family's fields in far northwestern Kane County, he can just begin to see the approach of suburbia 2 miles to the east. * * *

Those new residents might enjoy the sight of the Dumoulins' wide-open fields but would likely wrinkle their noses at the odor of their 25,000 pigs.

"We want to be good neighbors," said Bill Dumoulin.

"And good stewards," added his son Pat Dumoulin. "If at all possible, we'd like our kids to farm."

So the Dumoulins have embraced an ages-old recycling method, with an innovative twist, that they expect will help them accomplish both goals without raising a stink. And it could serve as a model to help save the livestock industry statewide.

Aided by state researchers, the Dumoulins have concocted a non-offensive-smelling, nutrient-rich compost from hog manure and landscape mulch that they have been using to fertilize the roughly 700 acres they till.

The operation reduces odors and waste from the farm and recycles landscaping mulch from the nearby suburbs. And the family hopes someday to get the needed permits to sell the compost for landscaping use, another benefit for those anticipated new neighbors.

The operation might help brighten the future of the state's livestock industry as well, said Illinois State University professor Paul Walker, an animal science researcher who has closely monitored the success of the Dumoulins' composting operation.

"We are at a crisis point in Illinois," he said. "We are about to lose the livestock industry in the state, particularly family-owned livestock farms. They are decreasing in number, and one of the big reasons is odor in livestock manure management."

The Dumoulins' 25,000 hogs produce tankloads of waste--more than a million gallons of "slurry" a year.

Instead of injecting manure directly into the soil, the traditional management strategy, the Dumoulins opted to mix manure with landscape waste to produce a compost that they apply to the soil.

"It doesn't smell at all," said son Mike Dumoulin as he scooped up a handful of the final product and sifted it through his fingers.

ISU tests showed scientifically that odor was dramatically reduced at an ISU farm when compost was applied to soil instead of manure.

ISU has not done any odor testing at the Dumoulin farm, Walker said, but, "there's been no odor complaints about the Dumoulins since they started the composting operation. And usually neighbors complain if they smell hog manure odor." * * *

The Dumoulins got started composting manure for their own use about three years ago after ISU supplied them with the scientific know-how and some equipment funded through an Illinois Council on Food and Agricultural Research grant.

They create the compost by spraying a prescribed amount of liquid manure atop pyramid-shaped windrows of carefully screened, mulched leaves, grass and wood chips that are churned and aerated periodically. The family has diverted about a million gallons of manure from being applied directly to their farmland and has recycled more than 30,000 cubic yards of landscape waste from such municipalities as Elgin, Geneva and Batavia.

Recycling part of the roughly 85,000 tons of landscape waste generated annually in Kane, which can't be landfilled and can't be burned, is a bonus as well, said Walker. The towns deliver the material directly to the farm at no cost to the Dumoulins.

"They are positioning themselves to survive as urbanization moves out around them, which is going to happen," Walker said. * * *

The Dumoulins hope eventually to market their compost to other farmers as well as turf growers, garden shops, golf courses and landscapers.

Compost can cost between $10 and $32 a ton to produce and can be sold for between $10 and $200 a ton, depending on quality, said Walker. And corn and soybeans grown on soils amended with compost yield similarly to crops grown with inorganic fertilizer, he said.

"Good compost is like black gold," said Bill Dumoulin. "It's a `win' situation for the cities and it's a `win' situation for us."

Posted by Marcia Oddi on Wednesday, April 13, 2005
Posted to Environment | Indiana economic development

Law - Illinois landfill bill stirs ire anew in 1st family

"Landfill bill stirs ire anew in 1st family" is the headline to a story today in the Chicago Tribune. See this Feb. 3, 2005 ILB entry for background to this family saga.) Some quotes:

A new push by Gov. Rod Blagojevich to tighten regulation of landfills has stoked a feud with his father-in-law, Ald. Richard Mell, and prompted some of the governor's fellow Democrats in Springfield to question whether he is trying to divert attention from more pressing state problems.

"The governor's office had to be aware that this legislation would resurrect the previous family battles," said Rep. John Fritchey (D-Chicago). "That simply leaves the question why they want to revisit those issues at a time when southern Illinois is clamoring for medical malpractice reform, northern Illinois is clamoring for regional transportation funding and all of Illinois is looking for education funding reform."

Posted by Marcia Oddi on Wednesday, April 13, 2005
Posted to General Law Related

Ind. Law - Old issues find new life as amendments

"Old issues find new life as amendments: Opponents say bills are antienvironment, anticonsumer" is the headline to a story today in the Munster (NW Indiana) Times. Some quotes:

Lobbyists and lawmakers are crying foul now that two previously defeated proposals have been slipped into existing legislation.

Consumer groups have opposed both bills. One would make the state water and air pollution regulations bow to federal standards, while another largely would deregulate telecommunications.

Senate Bill 298, originally a bill to regulate small business, has been amended to prohibit the state's air and water pollution control boards from setting rules more stringent than federal regulations. * * *

Also in the Senate, a proposal to reform telecommunications regulation found new life last week as an amendment to Senate Bill 381. The bill passed Monday, 74-22, and now moves on to a conference committee.

The deregulation proposal originally was in House Bill 1518 and became a casualty of a walkout by House Democrats March 1.

In a statement given in late March, SBC Indiana President George S. Fleetwood said Indiana's telecommunications laws had not been updated in nearly 20 years, and that deregulation could "spark a rebirth of broadband investment and innovation."

One concern of the original deregulatory proposal was that customers in some rural areas would not have provider choices. Fleetwood said the new version of the regulatory reform law includes a test that would allow regulators to deem markets competitive before relaxing pricing regulations for telecom providers.

Grant Smith, executive director of Citizens Action Coalition, said the bill was nothing more than an attempt to generate revenue. With the recent acquisition of AT&T by SBC Communications Inc., "We're not seeing competition, we're seeing consolidation," he said.

Posted by Marcia Oddi on Wednesday, April 13, 2005
Posted to Indiana Law

Ind. Decisions - 7th Circuit posts four today

Copeland, Jason v. County of Macon (CD Ill.) [10 pp.]

Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. While Jason Copeland (“Copeland”) was being held as a pre-trial detainee, he was severely beaten by other detainees at the behest of Darren Gregory (“Gregory”), a correctional officer at the Macon County Jail. Copeland then sued Gregory and received a $400,000 jury verdict against Gregory for his part in recruiting and encouraging other inmates in the jail to brutally attack and beat Copeland. Copeland then sued the County of Macon and the Office of the Sheriff of Macon County (the “County”) for indemnification. In granting Copeland’s motion for summary judgment, the district court found that Gregory was acting within the scope of his employment because the citizens of Macon County, as opposed to the Macon County Jail, were actually Gregory’s employer. We disagree and find that Gregory’s conduct in orchestrating the attack of a pre-trial detainee was not the type of conduct that he was authorized to perform nor was his conduct actuated by a purpose to serve his employer. We, therefore, reverse the decision of the district court.

Germano, John v. Winnebago County IL (ND Ill.) [7 pp]

Before CUDAHY, KANNE, and EVANS, Circuit Judges.
KANNE, Circuit Judge. John Germano, individually and as a class representative, brought suit against Winnebago County, Illinois, alleging deprivation of a property interest without due process of law. The plaintiffs argue that their due process rights were violated when the county required retired sheriff’s deputies to pay higher health care premiums than were required from currently employed deputies. The district court granted summary judgment in favor of Winnebago County. For the reasons set forth in this opinion, we affirm.

Hayes, Clarence v. Battaglia, Deirdre (ND Ill.) [9 pp.]

Before FLAUM, Chief Judge, and EASTERBROOK and WOOD, Circuit Judges.
EASTERBROOK, Circuit Judge. In this collateral attack under 28 U.S.C. §2254, Clarence Hayes, serving a life sentence for murder, contends that his lawyer during the state proceedings furnished ineffective assistance. He also contends that the state courts made several errors that justify relief. * * *

FLAUM, Chief Judge, concurring. I join in the Court’s opinion as to each of petitioner’s claims. While I agree that Hayes has not demonstrated that a “miscarriage of justice” will occur if the procedural default of his ineffective assistance of counsel claim is not excused, I comment separately to underscore what I understand to be the basis of this holding. * * *

Schrott, Lori v. Bristol-Myers Squibb (ND Ill.) [7 pp.]

Before EASTERBROOK, WOOD, and EVANS, Circuit Judges.
WOOD, Circuit Judge. When Lori Schrott’s bilateral breast augmentation surgery in 1987 failed to produce the positive results she expected, she was understandably upset. * * *

None of this is to say that Schrott has not suffered from the various medical problems she details, or that she was satisfied with the results of her 1987 and 1989 surgeries. It is only to say that she has no claim against these defendants. We therefore AFFIRM the judgment of the district court.

Posted by Marcia Oddi on Wednesday, April 13, 2005
Posted to Ind. (7th Cir.) Decisions

Tuesday, April 12, 2005

Ind. Courts - Commission recommends removal of judge

The Munster (NW Indiana) Times is reporting on its website this afternoon:

The Indiana Commission on Judicial Qualifications recommended the Supreme Court remove Lake County Superior Court Judge James Danikolas today. * * *

The Masters found Danikolas to be guilty of judicial misconduct for firing his Magistrate Kris Costa Sakelaris in May 2003 in retaliation for her truthful testimony at an earlier disciplinary case against Danikolas.

[Update 4/13/05] A longer story may be found in today's Munster (NW Indiana) Times.

Posted by Marcia Oddi on Tuesday, April 12, 2005
Posted to Indiana Courts

Ind. Decisions - Court of Appeals posts two today

Donald R. Coleman v. Alliance, LLC (4/12/05 IndCtApp) [Highlighted]
Vaidik, Judge

Predrag Vukovich worked for Donald Coleman at International Magnaproducts, Inc. (IMI), Coleman’s company. With Coleman’s blessing, Vukovich left to set up a new company, which serviced some of IMI’s customers. As he began to attract new business, Vukovich refused to sign a covenant not to compete that would have allowed Coleman to sell IMI, and his refusal nixed the sale. This dispute led to three lawsuits presenting multiple claims. First, we affirm the trial court’s grant of summary judgment to Vukovich on Coleman’s claim that Vukovich should have signed the covenant not to compete. Vukovich had no legal duty to sign. Second, we affirm the trial court’s grant of summary judgment to Vukovich on Coleman’s claim that Vukovich unlawfully misappropriated trade secrets. The customer information in dispute was not a trade secret. Third, we reverse in part the trial court’s denial of summary judgment to Vukovich on Coleman’s claim that Vukovich converted or trespassed on Coleman’s chattel and for replevin. Vukovich is entitled to summary judgment as to the RPMS software he allegedly copied, but Coleman and IMI may still maintain an action relating to conversion, trespass, or replevin relating to customer files, a rotary file, and a laptop computer. * * *

Affirmed in part, reversed in part, and remanded.
KIRSCH, C.J. and NAJAM, J., concur.

Deborah H. Walton v. Claybridge Homeowners Assoc., Inc. (4/12/05 IndCtApp) [Attorney Fees]
Riley, Judge
* * * In 2000, Walton purchased a lot in a subdivision known as Claybridge at Springmill, in Hamilton County. At that time, the developer had already constructed an entryway wall and wood fence on Walton’s lot and landscaped around them as permitted by certain easements. Pursuant to a declaration of covenants and restrictions (DCR), to which Walton’s lot was subject, the HOA was required to maintain the easements and any plantings on them and maintain and replace fences within any landscape easement on an owner’s lot. Walton, however, prevented the HOA from performing its obligations.

As a result, the HOA sought a permanent injunction against Walton. The trial court, finding that Walton had interfered with the HOA’s obligation to maintain the easements, granted the HOA’s request. Having concluded that the HOA was entitled to injunctive relief, the trial court then concluded that, pursuant to Section 17 of the DCR, the HOA was a prevailing party “entitled to recover all costs of enforcement and attorney fees incurred . . . .” The trial court further concluded that the HOA was permitted to “request a hearing on its costs, attorney fees and other damages, if any.” * * *

Based on the foregoing, we find that the trial court did not err when it awarded appellate attorney fees and costs. Because the issue of appellate attorney fees was not considered by this court in its prior appellate opinion, it is not the law of the case. With regard to costs incurred on appeal, the provision of the DCR awarding a prevailing party “all costs of enforcement,” and not Appellate Rule 67, governed the HOA’s recovery. The trial court’s award of attorney fees and costs to the HOA for preparing and defending the fee petition was also not erroneous. The provision of the DCR awarding the HOA attorney fees did not violate public policy and Walton has failed to show that the amount awarded was unreasonable. Affirmed.
CRONE, J., and ROBB, J., concur.

Posted by Marcia Oddi on Tuesday, April 12, 2005
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Intelenet problems apparently not limited to Indiana

On March 19th Michelle McNeil of the Indianapolis Star had a story headlined "State allegedly broke rules for Web service: Indiana violated U.S. regulations by not seeking competitive bids and by fixing prices, report says." Some quotes from that story:

Indiana broke federal regulations by failing to seek competitive bids on school and library Internet service and then fixing prices at "considerably" high rates, a report obtained by The Indianapolis Star reveals. * * *

Criminal investigators are scrutinizing Indiana's compliance with the "E-rate" program, which has provided about $23 million in federal grants to the state since 1998 for computer technology in schools and libraries. * * *

The U.S. attorney's office, which is overseeing the criminal investigation, won't talk about its investigation.

The Federal Communications Commission, which administers E-rate, wouldn't comment Friday.

Intelenet barely exists now; four employees are working to shutter the office. Gov. Mitch Daniels has ordered it combined with other technology offices.

The report, written by lawyers from Bose McKinney & Evans, reveals that Intelenet repeatedly did not meet the competitive bidding rules for E-rate when it arranged for technology services through one company, ATT-TSCO.

Because prices weren't set by competitive bids, the result was "seriously outdated" prices that were "considerably higher" than retail, the report states. Instead, prices were set by officials from Intelenet and the Indiana Higher Education Telecommunication System, a state group that serves as the equipment and systems manager, according to the report.

The prices were then approved by state technology officials from Intelenet, the Department of Education, the State Library and other technology offices. * * *

On Kernan's last business day in office in January, he warned that the lawyers had reported to his office that federal laws might have been broken regarding E-rate. His office refused to release the law firm's report under the Public Records Act, but he provided a copy of the report to the Intelenet Commission.

Only after repeated requests from The Star did the Daniels administration release the report.

Late last week an AP story dateline San Franscisco reported:
Six companies and individuals involved in a federal program to subsidize Internet access in the nation's schools and libraries have been indicted on allegations of defrauding the program, known as E-Rate.

Some of the companies and individuals are accused of submitting fraudulent documents to the government and being overcompensated for equipment headed to school districts in Arkansas, California, Michigan, New York, Pennsylvania, South Carolina and Wisconsin. Others are accused of rigging bids and conspiring toward that goal, and of charging the government for goods, such as video equipment, that are not covered by the program. * * *

The indictments stem from a federal grand jury probing the nationwide Internet-access funding program the Federal Communications Commission inspector general has said is beset by poor design and is susceptible to abuse by those selling the equipment to the schools.

Thursday's indictments come on top of similar allegations levied last year against Inter-Tel Technologies Inc. of Arizona and NEC Business Network Solutions Inc., part of Japanese electronics maker NEC Corp.

Financed through phone charges, the $2.25 billion-a-year program provides discounted Internet access and internal connection gear such as wiring and adaptors - all obtained from the private sector through a bidding process. The Federal Communications Commission inspector general said last year that, of 122 audits of the E-Rate program performed that year, about a third revealed substantial violations.

The case is United States v. Video Network Communications, 05-0208.

Posted by Marcia Oddi on Tuesday, April 12, 2005
Posted to Indiana Government

Ind. Decisions - 7th Circuit Posts Three Today

Ameritech Corp v. McCann, E. Michael (ED Wis.) [11 pp.]

Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.
EASTERBROOK, Circuit Judge. Now making its second appearance in this court, this suit presents questions about the meaning and constitutionality of 18 U.S.C. §2706, part of the Electronic Communications Privacy Act. This section requires any “governmental entity” that demands certain information from phone companies to pay for the expense of its provision. Michael McCann, the District Attorney for Milwaukee County in Wisconsin, has refused to comply with this statute. * * *

The judgment of the district court is vacated, and the case is remanded with instructions to issue a new declaratory judgment covering all of the points in this opinion. Given Wisconsin’s longstanding noncompliance with §2706, and its penchant for litigation, the declaratory judgment should provide that in the future the District Attorney must tender compensation as part of every request under Wis. Stat. §968.135 that Ameritech provide a terminating AMA report, and must agree to litigate the amount of compensation in state court if Ameritech deems the tender inadequate. Unless such an offer is made and included in the state court’s order, Ameritech need not provide the requested information. A provision of this kind will prevent the District Attorney from prolonging the guerilla warfare in which the state has been engaged for almost 20 years.

Jamal-Daoud, Loaae v. Gonzales, Alberto R. (Bd.Immigration Appeals) [14 pp.]

Before FLAUM, Chief Judge, and EASTERBROOK and WOOD, Circuit Judges.
FLAUM, Chief Judge. Petitioner Loaae Jamal-Daoud, a native and citizen of Iraq, petitions this Court for review of an order of the Board of Immigration Appeals (“BIA”) denying his requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). For the reasons stated herein, we affirm the order of the BIA.

USA v. Deutsch, Francis T. (SD Ill.) [6 pp.]

Before BAUER, POSNER, and EVANS, Circuit Judges.
PER CURIAM. After Francis Deutsch violated the conditions of his seven concurrent terms of supervised release, the district court revoked each term and imposed a combination of concurrent and consecutive prison terms that totals 61 more months of confinement. Deutsch appeals, arguing that the district court had no authority to impose any of the new prison terms consecutively. We affirm.

Posted by Marcia Oddi on Tuesday, April 12, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Billboard must meet city's setback order, says judge

Tri-State Media's Daily Clarion had an interesting story yesterday by Andrea Howe that began:

PRINCETON-A special judge's latest order in a six-year dispute between city officials and an Evansville-based billboard company couldn't have come soon enough for City Attorney Jerry Stilwell.

Stilwell's face graced one of the placards on the structure for six months, as a 60th birthday practical joke conceived by local attorney Dan Reeves.

Special Judge Robert Aylsworth ruled several weeks after Stilwell's six-month run on the structure expired that Princeton's Planning Commission 2003 requirement for the giant double-decker billboard to be moved at least 50 feet further south from its existing location just west of McDonald's Golden Arches along Ind. 64 East was proper.

"I'm pleased. The only thing that would have been better was the timing," Stilwell said Friday, after learning of the ruling Thursday.

Evansville Outdoor Advertising's attorney, Les Shively, has 30 days to file an appeal to prevent the relocation.

The dispute over the construction and location of the billboard began in late 1998, when Princeton Planning Commission members told Evansville Outdoor Advertising that a conditional use permit would be required to build the sign. The planning commission forwarded the matter to the Board of Zoning Appeals, recommending the BZA deny the request for a conditional use permit.

The BZA denied the application and the advertising company successfully sued in Gibson Superior Court. On Jan. 11, 2002, Special Judge James M. Redwine ordered the permits be issued. The city appealed the decision and the Indiana Court of Appeals issued an order in August 2002 that required the company to file for a permit and the city to determine appropriate setback.

Meanwhile, the advertising company proceeded with construction of the billboard.

The planning commission conducted a hearing in April 2003, where JMRG Inc., owner of the Princeton McDonald's restaurant just east of the sign, testified that the giant billboard's location blocked view of the restaurant's trademark "Golden Arches" from eastbound traffic.

Further on in the story:
"The fact that the erected billboard structure substantially interferes with the McDonald's signage that has been located in the same place since 1975 is a legitimate factor that may be considered and acted upon by the Plan Commission, for the protection of a local business of longstanding in the community and at the same location since 1975. Because the decision of the Plan Commission primarily benefits one adjacent landowner, this does not mean the members of the Plan Commission were unjustified in ordering that the billboard structure be relocated to the south of its current location," [Judge Aylsworth] wrote.

Posted by Marcia Oddi on Tuesday, April 12, 2005
Posted to Ind. Trial Ct. Decisions

Environment - Two economic development bills awaiting Governor's signature

Among the bills awaiting Governor Daniels' signature are two relating to the environment/economic development:

House Bill 1653 creates a "shovel ready site development center" within the Indiana Development Finance Authority (IC 4-4-11), which is a quasi-public entity.

Senate Bill 267 deals with "agricultural nuisances" by amending IC 30-32-9, an agricultural nuisance law passed in 2002. Section 9(d) of that current law provides:

d) An agricultural or industrial operation or any of its appurtenances is not and does not become a nuisance, private or public, by any changed conditions in the vicinity of the locality after the agricultural or industrial operation, as the case may be, has been in operation continuously on the locality for more than one (1) year if:
(1) there is no significant change in the hours of operation;
(2) there is no significant change in the type of operation; and
(3) the operation would not have been a nuisance at the time the agricultural or industrial operation began on that locality.
Senate Bill 267 would further narrow the definition of public or private nuisance by changing the current provision to read (emphasis added):
(d) An agricultural or industrial operation or any of its appurtenances is not and does not become a nuisance, private or public, by any changed conditions in the vicinity of the locality after the agricultural or industrial operation, as the case may be, has been in operation continuously on the locality for more than one (1) year if the following conditions exist:
(1) There is no significant change in the type of operation. A significant change in the type of agricultural operation does not include the following:
(A) The conversion from one type of agricultural operation to another type of agricultural operation.
(B) A change in the ownership or size of the agricultural operation.
(C) The:
(i) enrollment; or
(ii) reduction or cessation of participation;
of the agricultural operation in a government program.

(D) Adoption of new technology by the agricultural operation.

(2) The operation would not have been a nuisance at the time the agricultural or industrial operation began on that locality.

Posted by Marcia Oddi on Tuesday, April 12, 2005
Posted to Environment | Indiana economic development

Ind. Law - Still more on proposed "no more stringent" law

The Evansville Courier& Press has an editorial today on SB 298, asking "Why Tie Our Own Hands?" Some quotes:

One of the more compelling environmental debates in Indiana involves mercury pollution and the question of whether the Hoosier State should have its own rules, more strict than those of the federal government. * * *

it could be that after an airing of the issue, Hoosiers might decide they need to do more - and do it sooner - than federal rules require for dealing with mercury pollution. But if a legislative proposal added to an Indiana Senate bill becomes law this year, Indiana would surrender whatever power it has now to impose rules stricter than the federal government's.

Sen. Beverly Gard, chairwoman of the Senate Energy and Environmental Affairs Committee, called it "absolutely horrible public policy" * * *. She nailed it.

The provision, contained in Senate Bill 298, would prohibit state agencies from enacting environmental rules tougher than federal standards. Supporters say it is needed to prevent excessive industrial regulations that could hamper economic development, reports the AP.

But as Gard, R-Indianapolis, said, Indiana does not often do things that are more strict than federal law. In our view, it is critically important that Indiana hold on to the power to impose stricter standards, should they be needed. Why on earth would the state tie its own hands voluntarily?

Earlier, supporters of the provision appear to have steered it away from Gard's committee, the usual venue for discussion of environmental legislation. That should tell Hoosiers something about what is going on.

It is now in conference committee and should not be allowed out.

See this April 10th ILB entry for more information.

Posted by Marcia Oddi on Tuesday, April 12, 2005
Posted to Administrative Law | Environment | Indiana Law

Monday, April 11, 2005

Ind. Decisions - Court of Appeals posts one today; Tax Court posts one

Midwest Mineral, Inc. v. Board of Zoning Appeals (4/11/05 IndCtApp) [Change of Venue]
Hoffman, Senior Judge

* * * On July 14, 2004, the BZA adopted new findings at a public hearing. Those new findings were tendered to the trial court on August 10, 2004. On August 13, 2004, Midwest objected to the newly tendered findings. On August 20, 2004, the trial court denied Midwest’s motion for change of venue from the judge, and accepted the BZA’s new findings of fact. The trial court found the findings to be sufficient to support the BZA’s denial of Midwest’s application.

Midwest has appealed alleging that the trial court erred by denying Midwest’s June 2, 2004, motion for change of venue from the judge. The BZA argues that the trial court correctly denied Midwest’s motion because Midwest was entitled to only one change of venue from the judge pursuant to Ind. Trial Rule 76(B). The BZA further argues in the alternative that Midwest is not entitled to a change of venue from the judge pursuant to Ind. Trial Rule 76(C)(3) because the panel of this court in the first appeal, did not remand the matter for a “new trial.” * * *

This case is similar to that decided by our supreme court in State ex rel. Hahn. Although the other panel of this court did not remand the matter for a new trial, what was ordered was in effect a new trial for purposes of determining an issue of law, whether the decision of the BZA was legal. The right to a change of venue from the judge arose anew.

Therefore, the trial court erred by denying Midwest’s June 2, 2004, motion for change of venue from the judge. Because of our determination on this issue, we do not address the additional issue on the merits of this case.

This matter is remanded to the trial court to grant Midwest’s motion for change of venue from the judge and for further proceedings. Reversed and remanded.
RILEY, J., and SHARPNACK, J., concur.


Victoria Enterprises/Worthman Mall v. Department of Local Government Finance
(4/8/05 IndTaxCt - NFP) [Real Property Tax]
Fisher, Judge
Victoria Enterprises/Worthman Mall (Victoria) appeals from a final determination of the State Board of Tax Commissioners (State Board) that assessed a portion of Victoria’s improvement as an atrium with a mezzanine for the 1996, 1997, 1998 and 1999 tax years (years at issue). The sole issue before the Court is whether the State Board erred in its assessment. The Court AFFIRMS the State Board’s final determination for the following reasons.

Posted by Marcia Oddi on Monday, April 11, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - City to contest 'no protest zone' ruling

The Evansville Courier& Press reports today, in a story by Maureen Hayden, that:

The city of Evansville will challenge a federal court ruling that found city police violated a protester's constitutional rights when they arrested him in a "no-protest zone" outside a 2002 appearance by Vice President Dick Cheney.

City attorney David Jones said the decision to appeal the ruling came after the U.S. Department of Justice agreed to acknowledge the Secret Service mandated the no-protest zone as part of a top-secret security plan to protect Cheney during his appearance at a private fund-raiser in Evansville for Rep. John Hostettler, R-Indiana. The Justice Department had refused to assist Jones after the lawsuit was initially filed. "It wasn't fair to put local law enforcement in the position of having to enforce the plan and then not back our Police Department," Jones said. "The Secret Service left us holding the bag." * * *

Jones said the city will now ask McKinney to issue a final judgment in the case, which will allow the city to appeal the ruling to the 7th Circuit U.S. Court of Appeals.

In his ruling, McKinney didn't specify the amount of damages to which Blair was entitled, and set the matter for trial. On Friday, ICLU attorney Ken Falk offered a confidential settlement offer to the city, which Jones said the city will likely reject given its decision to appeal McKinney's ruling. Falk said he understood the city's decision to appeal, given the nature of the case. But he doubts the appeal will succeed. "We're confident Judge McKinney's ruling will stand," Falk said.

See this April 4th ILB entry for links to Judge McKinney's opinion, plus links to background entries.

Posted by Marcia Oddi on Monday, April 11, 2005
Posted to Ind Fed D.Ct. Decisions

Environment - Kentucky sludge dispute spurs closer looks at laws regulating sewage

"Sludge dispute spurs closer looks at laws regulating sewage" is the headline to a story today in the Louisville Courier Journal. This story about Kentucky is also relevant in Indiana, both to the "no more stringent" bill now under consideration in the General Assembly, and in light of the NW Indiana/Chicago "blue bag waste" stories reported here earlier this year.

The Louisville Courier Journal story reports:

When BioReclamation LLC withdrew its application on Tuesday to truck as much as 500 tons a day of sludge from Nashville, Tenn., to a Hopkins County site for processing and subsequent use for reclaiming strip-mined land, county residents viewed it as a victory.

The proposal died after some people complained that the company was trying to sneak the sludge project through cracks in state regulations.

Some said there was not enough public notice and others said they feared the partially treated sludge that was to be buried in trenches at a former strip mine for final treatment would pollute groundwater, create odor and draw flies.

The stink raised may also have some long-term effects.

Hopkins County Fiscal Court pushed ahead last week toward approving an ordinance regulating sludge treatment and disposal. And a leader of a joint House-Senate environmental committee said last week that he's concerned state rules would allow such a project with no public notice or involvement.

"We're going to look at this," said Rep. Jim Gooch, D-Providence, co-chairman of the joint Committee on Agriculture and Natural Resources. Gooch said he is concerned about "expedited permits … without local people's input." * * *

In the aftermath of the controversy, the endless flow of sludge from the nation's wastewater treatment plants continues, as does a debate over what to do with it.

Communities produce more than 7 million tons annually, sending it to landfills, farms or -- in some cases -- to strip-mined sites to reclaim damaged land. Some, including Louisville, process it into dry pellets for possible sale as commercial fertilizer.

Bill Toffey, who manages the use of sludge -- sometimes called biosolids -- for the Philadelphia Water Department, said coal mining companies began working with Philadelphia in the late 1970s. That city was under a federal order to stop dumping sludge into the ocean, and coal miners faced rules forcing them to rehabilitate strip mines.

"The land was in really rough shape," Toffey said, adding that mining companies used the sludge to replace the topsoil, not to treat it.

Nationally, about 60 percent of sludge is reused under terms allowed by state and federal rules. But the practice is loosely regulated compared with disposal of other material, such as solid or hazardous waste, because sludge is presumed safe if state and federal regulations for treating, monitoring and applying it to land are followed.

But environmentalists and some industry insiders said that state and federal rules are out of date and that enforcement is often sketchy.

"There is a virtual circle of neglect when it comes to the use of these sludges," said Tom FitzGerald, director of the Kentucky Resources Council. They are often not adequately tested for pollutants or properly managed "by state and federal regulators in light of their potential to affect public health and the environment," he said.

No federal permit is required, even though sludge typically contains some level of potentially toxic chemicals or metals, and, if not fully treated, disease-causing pathogens, such as E. coli bacteria.

"We tend to be a lot more focused on raw sewage going into waterways," said Doug Mundrick, water enforcement branch chief of the U.S. Environmental Protection Agency in Atlanta.

He said his office has the equivalent of two inspectors covering eight states, including Kentucky, to enforce the EPA's so-called "self-implementing" sludge rules.

Uneven regulations. Kentucky, Indiana and the EPA set limits on some -- but not all -- of the potential pollutants in sludge. Each imposes restrictions on how it can be applied to the land, but some critics say they may not adequately protect public health. Both Kentucky and Indiana require permits for applying sludge to land, but Kentucky doesn't always require public notice, while Indiana does. * * *

The company was planning to bring in sludge that was not fully treated, and it proposed a method of reducing pathogens that environmentalists and some Kentucky experts in the industry said had the potential to threaten groundwater, create explosive gases and produce strong odors.

Some provisions of Kentucky's biosolids rules are more stringent than federal rules, others are not -- and both sets have some gaps, said Gordon Garner, executive director of the Metropolitan Sewer District in Louisville and a member of the Kentucky Environmental Quality Commission and biosolids partnership volunteer. So it's important that projects for handling sludge exceed regulatory requirements, Garner said. If that isn't done, Hadeed said, "You may be in compliance with the EPA and the state, but not be in compliance with your community." * * *

Kenneth Rudo, North Carolina's state toxicologist in its public health division, said skin rashes and respiratory ailments can occur in people if they live too close to sludge. He recommends sludge be kept 2,500 feet from homes -- more than 10 times the distance required in Kentucky.

He also said frequent testing of sludge is needed to make sure contaminant levels routinely meet health standards. Kentucky requires large treatment plants to test sludge once a month. Smaller treatment plants can test just twice a year. The Metropolitan Sewer District in Louisville voluntarily tests its sludge daily to be confident the fertilizer pellets it produces are safe, said Bud Schardein, the agency's head.

Posted by Marcia Oddi on Monday, April 11, 2005
Posted to Environment

Ind. Gov't. - Governor Daniels' business appointees

The Sunday Indianapolis Star business section had a feature by J.K. Wall on the governor's private-sector approach to government and his appointments to head state agencies. Some quotes:

Outside observers say state government could benefit from a business-world sense to serve customers, cut costs and do cost-benefit analysis. But some caution the authoritarian, "make it so" style of business management can alienate the multitude of constituencies in government, which operate more on building consensus. Still others suggest the notion of bringing executives into government is wrong-headed. * * *

Daniels has his staff looking to cut costs, to use data to make decisions and measure performance, and to reward top performers -- with both kudos and cash. Daniels' appointees have taken to those tasks heartily. * * *

That greater emphasis on management is an advantage business people often have over agency heads who focus more on policy, said Mark Abramson, executive director of the IBM Center for the Business of Government. The Washington nonprofit group, supported by IBM, studies government operations and advocates improvements. "The private sector is a little bit more disciplined in its management," Abramson said. * * *

What Daniels' appointees haven't taken to are the regulations, the politics and the slower pace of government. Indianapolis entrepreneur Mickey Maurer, now president of the Indiana Economic Development Corp., said he has had to adjust to going from no boss to many bosses, including Secretary of Commerce Pat Miller. "In my professional, former life, I would say, 'OK, let's do it,' " he said. "Now, I say, 'What's the governor's office think about it?' "

[Joel Silverman, commissioner of the Bureau of Motor Vehicles] said he has been frustrated by 800 pages of law and regulations that govern the Bureau of Motor Vehicles. He said he hasn't read them all. "It's more complicated than what I thought when I came in here because of the myriad of laws," Silverman said.

Frustration is a common reaction, said John Mutz, former lieutenant governor of Indiana and former president of PSI Energy. "They're not used to the restraints that the system puts on them," Mutz said. "It's a monster to keep track of." That's especially so with state employees. Many are merit employees who, unlike in business, cannot be fired easily. "They are not just going to roll over and do what the directors say," Mutz said. * * *

Paul Lawrence, partner in charge of the IBM Center for the Business of Government, said the success of Daniels and his administration will depend on things like [Daniels'] visits to the cafeteria.

"If (appointees) come in with this belief that government people are dunces, they often have a difficult time working with a team," Lawrence said. "The people that can get stuff done are those that can engage people. This is hearts-and-minds sort of stuff."

Abramson, also at the Center for the Business of Government, said most business executives walk away from government with more respect for state employees. "They've probably thought, 'Well, I can do better than that,' " he said. "They come away thinking, 'This isn't as easy as I thought.'"

Let me second some of those statements. Those of us who have worked in state government know its constraints and its frustrations. Many things are mindless and can be changed, albeit with much effort. But much "comes with the package." For instance, it takes forever for a state agency to make a purchase or enter into a contract because of the "red tape" involved.

But those restrictions and "sign-offs" were designed to limit fraud and abuse. Interestingly, most if not all of the highly publicized scandals we have read about in the past few years have come not from traditional state agencies that must operate under these rules, but come from the "quasi-public" entities that were designed in part to allow circumvention of pesky, time-consuming governmental restrictions.

The Star article includes a sidebar on the "19 people with significant business backgrounds [he has appointed] to lead agencies in his administration."

Pat Miller
• Title: Secretary of Commerce
• Salary: $76,000
• Background: Co-founder, Vera Bradley Designs

Mickey Maurer
• Title: President, Indiana Economic Development Corp.
• Salary: $1
• Background: Attorney; chairman, National Bank of Indianapolis; chairman, IBJ Corp.

Joel Silverman
• Title: Commissioner, Bureau of Motor Vehicles
• Salary: $100,000
• Background: Career in retail; CEO of Galyan's Trading Co., 1997-2002

Thomas Sharp
• Title: Commissioner, Department of Transportation
• Salary: $96,000
• Background: Owner, SharpRENT Properties; retired as executive of Alcoa

Ron Stiver
• Title: Commissioner, Department of Workforce Development
• Salary: $90,000
• Background: Brand strategist and sales manager, Eli Lilly and Co.

Earl Goode
• Title: Commissioner, Department of Administration
• Salary: $95,000
• Background: President, GTE Information Services; president, GTE North; owner, Sassy Springs Farm in Kentucky

Karl Browning
• Title: CIO, Department of Administration
• Salary: $92,000
• Background: SVP and CIO, Golden Rule Insurance Co.

Andy Miller
• Title: Director, Department of Agriculture
• Salary: $100,000
• Background: VP, Weaver Popcorn; president, Nature's Entree; ConAgra, Nabisco, P&G

Thomas Easterly
• Title: Commissioner, Department of Environmental Management
• Salary: $96,000
• Background: President, Environmental Business Strategies; NiSource; Bethlehem Steel's Burns Harbor; New York Department of Environmental Conservation

E. Mitchell Roob
• Title: Secretary, Family and Social Services Administration
• Salary: $108,000
• Background: VP, ACS; director, Indianapolis Department of Transportation; COO, Indianapolis Water Co.

Harry Gonso
• Title: Chief of staff and special counsel to governor
• Salary: $108,000
• Background: Partner, Ice Miller; focused on corporate and securities transactions

Miguel Rivera
• Title: Commissioner, Department of Labor
• Salary: $93,000
• Background: Senior counsel, global litigation, Cummins Inc.; attorney, Locke Reynolds; deputy attorney general, Indiana

Esther Schneider
• Title: Executive director, State Lottery Commission
• Salary: $100,000
• Background: Director, advertising and PR, Sands Hotel and Casino, Las Vegas; media buyer, Imperial Palace Hotel/Casino; 1998 Nevada candidate for U.S. House; owner, Nevada PR and media buying firm

Charles Schalliol
• Title: Director, Office of Management and Budget
• Salary: $110,000
• Background: CEO, BioCrossroads; director, corporate finance and investment banking, Lilly BioVentures

Deb Minott
• Title: Director, State Personnel Department.
• Salary: $90,000
• Background: VP, chief governance officer, Guidant Corp.; EVP, general counsel, Essex International Inc., Fort Wayne; Eli Lilly and Co.

Kyle Hupfer
• Title: Director, Department of Natural Resources
• Salary: $96,330
• Background: Partner, Ice Miller; concentrated on corporate law

David Adams
• Title: Executive director, Public Employees' Retirement Fund
• Salary: $118,750
• Background: Managing partner, Estate Ventures, Indianapolis; operated V-Trade, an online trading firm

John Eckart
• Title: Commissioner, Department of Revenue
• Salary: $96,000
• Background: President and chairman of Indiana, Ohio and Michigan American Water Cos.

Judy Monroe
• Title: Commissioner, Department of Health
• Salary: $140,000*
• Background: Director, primary care center and family medicine residency, St. Vincent Hospitals and Health Services
• Note: Monroe is a contractor, not a state employee.

Posted by Marcia Oddi on Monday, April 11, 2005
Posted to Indiana Government

Ind. Law - Still more on "IU-Indianapolis Law reportedly tumbles in U.S.News rankings"

"Rankings slide is a trial for law school: Students worried it could affect job hunting" is the headline to a front-page story today by Barb Berggoetz in the Indianapolis Star. Some quotes:

[T]he latest ranking of the Indiana University School of Law-Indianapolis -- the state's largest of four law schools -- has plummeted from 63rd to a tie for 95th in the U.S. News & World Report graduate school listings. * * *

But law school officials are forming a task force to analyze the reasons for the rankings slide and to make sure they're doing everything possible to accurately report the data for the ranking. They've scheduled a forum to answer questions April 25, responding to the Student Bar Association's request for an explanation.

According to this quote from the Star report, the school's ranking for the past several years may have been higher than warranted:
A mistake by the university has added to the tumble. The news magazine considers "faculty resources per student," a category that includes money spent on salaries, library materials and student career and other services, based on a three-year average. But three years ago, the law school inadvertently underreported student enrollment. That made the per-student resources seem more lavish than they were, which in turn boosted the school's ranking. The mistake has been fixed this year.
Check here for earlier ILB entries on this topic.

By the way, the side-bar to the Star story today may be misleading. It lists IU-Indianapolis as "tied for 95th" and "Marquette University, Mercer University (Georgia), and University of Kansas" as "tied for last." These three schools are actually tied for 100th, of the "100 top law schools" in the US News survey. Here is the actual U.S. News Top 100 Law Schools list. But there are a lot more law schools than 100.

U.S. News
also sets out a Tier 3 and a Tier 4 list. Each of these tiers contain what looks like 40 or more schools. The schools on these two lists are not otherwise ranked, but are listed alphabetically. Included on the Tier 3 list, for example, are law schools like DePaul University, Michigan State University, and Albany Law School-Union University. Included on the Tier 4 list, for example, are Valparaiso University, Texas Wesleyan University, Drake University.

Posted by Marcia Oddi on Monday, April 11, 2005
Posted to Indiana Law

Sunday, April 10, 2005

Ind. Law - Dispute awaits environmental bill

More today in several Indiana papers about SB 298, via an AP story by Rick Callahan, headlined by the Louisville Courier Journal -- "Dispute awaits environmental bill: Plan restricts rules stricter than EPA's." Some quotes:

Legislation that would prohibit state agencies from enacting environmental rules tougher than federal standards is headed for a face-off in the General Assembly, with a senator calling it "absolutely horrible public policy."

Supporters contend it is needed to prevent excessive industrial regulation that can hamper economic development, but environmentalists strongly oppose it, as does Sen. Beverly Gard, chairwoman of the Senate Energy and Environmental Affairs Committee.

Gard said the bill poses a threat to public health because it would bar the state's air pollution and water pollution control boards from adopting rules or standards more stringent than U.S. Environmental Protection Agency standards.

"We don't often do things that are more strict than the federal law, but to say that absolutely under no circumstances you can't do it is absolutely horrible public policy," said Gard, R-Greenfield. * * *

Wolkins said similar legislation has passed the House in three separate sessions, but died because Gard -- who calls the move by Wolkins an "end run" around her committee -- would not give it a hearing.

He contends that Indiana has paid a price in the past by adopting standards tougher than federal regulations. He said the state's water quality standards have contributed to a backlog of outdated water permits at the Indiana Department of Environmental Management.

"I think the EPA standards are strong enough and I don't think we need to be reinventing the wheel and going through the process of adopting standards that are stricter than the federal standards," Wolkins said.

Gard said state law now requires state environmental regulators to conduct scientific and fiscal impact studies in cases where it wants the state's environmental rules to be stricter than federal mandates. * * *

Sen. Michael Young, R-Indianapolis, is the sponsor [sic.] of the bill, which is now in a conference committee where compromises will be considered. He said it could receive a public hearing -- its first in the Senate -- as early as this week.

For background, see this April 7th ILB entry. Who are the Senate conferees on the bill? From the Action List: Senator Garton has appointed Senators M. Young and Hume. He has also appointed as "advisors" Senators Gard and R. Young.

Who were the authors of the original version of SB 298? Senators Senators M. Young and Kenley. It was coauthored by Senators R. Young and Hume. Recall that the Senate version of the bill simply proposed some tweaks to the administrative rulemaking statute requiring an agency to submit a rule with an estimated economic impact greater than $500,000 to the legislative services agency (LSA) for a fiscal impact statement. The changes to the Senate bill -- dealing with small business and "no more stringent" -- were all added in the House. The House conferees apparently have not yet been named.

Posted by Marcia Oddi on Sunday, April 10, 2005
Posted to Administrative Law | Environment | Indiana Law

Saturday, April 09, 2005

Ind. Decisions - Appeals court throws out cocaine conviction filmed by TV crew

An AP story on a Court of Appeals decision April 7th has appeared in papers nationwide. Some quotes:

INDIANAPOLIS -- The Indiana Court of Appeals has thrown out a man's cocaine conviction because his strip-search was filmed by a camera crew for the Oxygen Network.

In its ruling, the court found that the filming of Andra Thompson's strip-search was "unprofessional and unreasonable."

"Where should the media line be drawn?" Judge Edward Najam wrote in the ruling, issued Thursday. "We think the line should be drawn here. ... We will not sanction such conduct, which demeans the suspect and degrades the entire legal process. * * *

When he showed up during a June 2003 sting at a motel, officers took him into a bathroom and searched him, finding cocaine stuffed between his buttocks.

The search was filmed, with police permission, for an Oxygen Network show called "Women and the Badge." One of the arresting officers was a woman.

At one point, the camera zoomed in on Thompson's naked posterior for several seconds while he was bent over in handcuffs with his pants pulled down.

The decision is Andra Thompson v. State of Indiana (4/7/05 IndCtApp) -- access the ILB summary and case link here -- 4th case.

Posted by Marcia Oddi on Saturday, April 09, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Appeals court approves lawsuit over PCB cleanup

"Appeals court approves lawsuit over PCB cleanup: Case involves 3 Monroe dumps" is the headline to this AP story in the Louisville Courier Journal, reporting on the April 6th 7th Circuit decision in Frey, Sarah E. v. EPA (ILB summary here - last case). Some quotes:

BLOOMINGTON, Ind. -- Five years after environmental activists sued Viacom Corp. over the cleanup of three hazardous-waste sites tainted with PCBs, a federal appeals court has ruled that the case can go to trial. In an opinion issued Wednesday, the 7th U.S. Circuit Court of Appeals returned the case to a federal court in Evansville.

The U.S. Environmental Protection Agency had argued that under federal law the suit could not move forward because work was still being done at the three sites. But the appeals court disagreed, saying there was no clear timetable for such work. "No such objective evidence exists in this record," the ruling said.

The suit was filed in April 2000 by Monroe County residents Sara Elizabeth Frey and Kevin Enright and the environmental group Protect Our Woods Inc. against the EPA and Viacom.

In their complaint, the activists alleged that the public suffered irreparable harm because the cleanup of three Bloomington-area sites -- Lemon Lane Landfill, Neal's Landfill and Bennett's Dump -- was limited to only the most contaminated areas. As a result, the suit contended, the remaining polychlorinated biphenyls, or PCBs, are still being released into the air, ground and surface water.

Posted by Marcia Oddi on Saturday, April 09, 2005
Posted to Ind. (7th Cir.) Decisions

Friday, April 08, 2005

Ind. Decisions - Transfer list for week ending April 8, 2005

Here is the Indiana Supreme Court's transfer list for the week ending April 8, 2005. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column. Two cases were granted transfer:

Posted by Marcia Oddi on Friday, April 08, 2005
Posted to Indiana Transfer Lists

Environment - Land trust gets more time

"Land trust gets more time: Environmental group trying to avoid taxes" is the headline to a story today in the Munster (NW Indiana) Times. Some quotes:

CROWN POINT | Lake County officials gave more time Thursday to an environmental group trying to avoid ruinous taxes on land it holds to promote nature preservation.

The Lake County Property Tax Assessment Board of Appeals will wait at least until May before deciding whether the Shirley Heinze Land Trust must pay tens of thousands of dollars on 213 vacant parcels donated to or purchased by the Michigan City-based organization to enhance the environment.

It was the fourth such delay.

Board members said they will await the passage of a bill in the Indiana General Assembly that might make the land trust tax exempt.

I don't know what the bill is. For background, see this Dec. 23, 2004 ILB entry.

Posted by Marcia Oddi on Friday, April 08, 2005
Posted to Environment

Ind. Law - More on "Impact of same sex marriage ban in Ohio and Michigan Constitutions ..."

The South Bend Tribune today has an AP story headlined "Same-sex benefits hinge on 6 words: Dispute centers on clarity of phrase in gay marriage ban." For background, start with this ILB entry from Monday, Apri 4th.

Posted by Marcia Oddi on Friday, April 08, 2005
Posted to Indiana Law

Ind. Decisions - Court of Appeals posts two today; Tax Court posts one


Cynthia Averitte v. State of Indiana
(4/8/05 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge

Appellant-Defendant Cynthia Averitte (“Averitte”) appeals her sixty-year sentence for murder. We affirm.

Issue. Averitte raises one issue, which we restate as whether the trial court committed fundamental error when it accepted her jury trial waiver because the trial court failed to advise her that she had the right to a have a jury determine, beyond a reasonable doubt, all facts legally essential to her sentence pursuant to the Sixth Amendment. * * *

We now address the sole issue presented in this case, which we have restated as whether the trial court committed fundamental error when it accepted Averitte’s jury trial waiver because it failed to advise her that she had the right to a have a jury determine, beyond a reasonable doubt, all facts legally essential to her sentence pursuant to the Sixth Amendment and Blakely v. Washington * * *

In the present case, the record reveals that Averitte executed her jury trial waiver and was tried to the bench, convicted of murder, and sentenced to a term of sixty years prior to the United States Supreme Court’s decision in Blakely. Accordingly, Averitte was never specifically advised of her right to have a jury determine the facts legally essential to her sentence, See footnote nor did the trial court—which did not have the benefit of the Blakely analysis—procure from Averitte any waiver of such right. Thus, under these circumstances, we do not conclude that Averitte knowingly, intelligently and voluntarily waived her right under Blakely.

Having determined that Averitte did not knowingly waive her Sixth Amendment right pursuant to Blakely, we next examine whether Averitte is entitled to a new sentencing hearing. * * *

This evidence overwhelmingly supports the trial court’s findings of aggravating circumstances to the point where we do not believe that a reasonable jury would have concluded otherwise. Accordingly, any error in the trial court’s denial of Averitte’s Sixth Amendment right in sentencing is harmless. As such, we affirm Averitte’s enhanced sixty-year sentence. Affirmed.
SULLIVAN, J., and MATHIAS, J., concur.

Dianna S. Brodt v. Steven M. Lewis (4/8/05 IndCtApp) [Family Law]
Riley, Judge
* * * Brodt raises one issue on appeal, which we restate as follows: whether the trial court abused its discretion by refusing to modify the child support order to include an educational support order for the child’s college expenses when the petition to modify was filed after the child turned twenty-one years of age. * * *

From the limited evidence before us, it is apparent that Lindsey Jo did not immediately enroll at Three Rivers Community College upon graduating from secondary school. Therefore, since she commenced a college career later in life, and filed a petition to defray these expenses after turning twenty-one and because neither the 1988 order nor the 1999 modification referenced educational expenses, any order for payment of college expenses is a new order, not a continuation of an existing order. Accordingly, we hold that Brodt’s petition, filed after Lindsey Jo turned twenty-one was untimely and the trial court appropriately declined to address her petition to modify.

CONCLUSION. Based on the foregoing, we find that the trial court properly denied Brodt’s petition to modify the child support order to include an educational support order for the child’s college expenses. We affirm.
CRONE, J., concurs.

ROBB, J., concurs with separate opinion. I write separately to emphasize that although parents are free to agree to payment of amounts in addition to the basic child support obligation, I believe any such agreement should be narrowly construed to avoid imposing on parents the obligation to pay expenses of a different type and magnitude than those to which they actually agreed. Any other construction would have a chilling effect on parents’ willingness to agree to pay additional amounts for minimal elementary and secondary education expenses if they think that by so agreeing they may end up being “on the hook” for college expenses even if a petition to modify is not otherwise timely filed. Subject to the above observation, I concur.

Wal-Mart Stores, Inc. v. Wayne Township Assessor (4/8/05 IndTaxCt) [Real Property Tax]
Fisher, Judge
Wal Mart Stores, Inc. (Wal Mart) appeals the final determination of the Indiana Board of Tax Review (Indiana Board) valuing its real property for the 2001 tax year. The sole issue before this Court is whether Wal Mart’s improvements are entitled to obsolescence depreciation. * * *

Wal Mart characterizes this case as a “difficult” one. It is, however, both simple and straightforward. Both buildings were standing on the March 1, 2001 assessment date; therefore, both buildings should have been assessed. See Ind. Code Ann. § 6-1.1-2-1 (West 2001) (providing that “all tangible property which is within the jurisdiction of this state on the assessment date of a year is subject to assessment and taxation for that year”). Wal Mart’s business judgment in having both stores standing on the assessment date is not, by itself, a cause for obsolescence. Moreover, even assuming that Wal Mart showed valid causes of obsolescence resulting from this situation, it completely failed to quantify the obsolescence it sought. Accordingly, Wal Mart’s requests for obsolescence on both the old and new stores are therefore denied.

For the foregoing reasons, the Court AFFIRMS the final determination of the Indiana Board valuing Wal Mart’s property for the 2001 tax year.

Posted by Marcia Oddi on Friday, April 08, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts four today

IFC Credit v. Bulk Petroleum Corp (ED Wis.) [10 pp.]

Before CUDAHY, KANNE and EVANS, Circuit Judges.
CUDAHY, Circuit Judge. Plaintiff IFC Credit Corporation (IFC) brought suit alleging that Bulk Petroleum Corporation (Bulk) and its CEO, Darshan Dhaliwal, breached a lease agreement under which Bulk leased gasoline tanks and other equipment from IFC with an option to purchase them at the end of the lease. Bulk claims that the lease agreement has been concluded through an accord and satisfaction executed with the assignee of IFC’s rights under the lease. The district court, through Magistrate Judge Aaron E. Goodstein, granted Bulk’s motion for summary judgment, ruling that a valid accord and satisfaction had taken place. IFC now appeals that ruling, and we affirm.

Joy, Lynn A. v. Hay Group Inc (ND Ill.) [6 pp.]

Before BAUER, POSNER, and KANNE, Circuit Judges.
POSNER, Circuit Judge. Lynn Joy, the plaintiff in this diversity breach of contract suit governed by Illinois law, appeals from the grant of summary judgment in favor of the defendant, a consulting firm named Hay Group, Inc. (HGI). Joy is a former employee of HGI, and her principal claim is that her employment contract entitled her to one year’s base salary (which was $210,000) if she was terminated, provided she was terminated “for reasons other than cause,” a word not defined in the contract. * * *

USA v. Della Rose, Steven J (ND Ill.) [28 pp.]

Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. A grand jury charged Chicago attorney Steven J. Della Rose with conspiracy to commit mail fraud and producing a false identification document in or affecting interstate commerce, alleging that Della Rose had arranged for an associate to obtain false identification in the name of Della Rose’s client and use that identification to fraudulently cash a settlement check made payable to that client and turn the proceeds over to Della Rose. A petit jury subsequently convicted Della Rose on these charges, although the district judge later granted him a judgment of acquittal on the false identification card charge. The judge ordered Della Rose to serve a prison term of 41 months. Della Rose appeals, contending among other things that the district judge erred in excluding so-called “reverse 404(b)” evidence that Della Rose’s associate had previously trafficked in phony identifications, which evidence was offered in part to show that it was the associate, rather than Della Rose, who was the likely perpetrator of the scheme. Fed. R. Evid. 404(b); see United States v. Wilson, 307 F.3d 596, 601 (7th Cir. 2002). Because the core of this evidence was hearsay not subject to any exception that would render it admissible, we conclude that the district judge did not abuse his discretion in excluding this evidence. Finding no other error sufficient to warrant a new trial, we affirm Della Rose’s conviction. However, we direct a limited remand of his sentence so that the district court may determine whether it would have sentenced Della Rose differently had it realized that the Sentencing Guidelines are advisory rather than mandatory. See United States v. Booker, 125 S. Ct. 738 (2005).

Cincinnati Insur Co v. Leighton, G. Timothy (CD Ill.) [21 pp.]

Before CUDAHY, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. The Cincinnati Insurance Company issued a financial responsibility bond guaranteeing that Dixie Management Group, Inc., would deliver to the State of Illinois taxes collected on sales of motor fuel at Dixie’s truck stops. Cincinnati surrendered the bond amount to the state after Dixie incurred a substantial tax liability and declared bankruptcy; Cincinnati then brought this suit in diversity seeking indemnity from Timothy Leighton, a former Dixie executive who signed Dixie’s bond application as an individual indemnitor for Cincinnati but was fired from Dixie four years before Cincinnati paid on the bond. On cross-motions from the parties, a magistrate judge, presiding by consent, entered judgment as a matter of law for Leighton, and later denied Cincinnati’s motion to vacate under Federal Rule of Civil Procedure 60(b). We affirm both decisions.

[page 20] WILLIAMS, Circuit Judge, concurring. [However, the two page "concurring opinion ends with] Therefore, I respectfully decline to join that part of the opinion that discusses this issue.

Posted by Marcia Oddi on Friday, April 08, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Law - More on "IU-Indianapolis Law reportedly tumbles in U.S.News rankings"

For those looking for more information on IU-Indy's precipitous fall in the U.S. News rankings:

Posted by Marcia Oddi on Friday, April 08, 2005
Posted to Indiana Law

Thursday, April 07, 2005

Ind. Decisions - Court of Appeals posts five today

Keaton and Keaton, P.C. v. R. Mark Keaton, et al (4/7/05 IndCtApp) [Unfair Competition]
Bailey, Judge

Case Summary. Appellant-Plaintiff Keaton and Keaton, P.C. (“Rushville Keaton”) appeals the trial court’s grant of summary judgment in favor of R. Mark Keaton and Paul A. Keaton d/b/a Keaton & Keaton (collectively “the Fort Wayne Keatons”). We affirm.

Issue. Rushville Keaton raises one issue, which we restate as whether the trial court erred in granting summary judgment on Rushville Keaton’s unfair competition claim in favor of the Fort Wayne Keatons where the parties agree that the Fort Wayne Keatons were not passing off or intentionally misrepresenting their services as the services of Rushville Keaton. * * *

Unlike most unfair competition cases, here, it is undisputed that the Fort Wayne Keatons have not passed off their services as those of Rushville Keaton, and thus the issue becomes a matter of law. Indeed, the undisputed designated evidence shows that since renaming its practice Keaton & Keaton, the Fort Wayne Keatons have represented hundreds of clients and have never passed off their services as those of Rushville Keaton or expressed that any relationship exists between the two firms. Accordingly, the trial court did not err in denying Rushville Keaton’s motion and granting summary judgment in favor of the Fort Wayne Keatons. Affirmed.
SULLIVAN, J., and MATHIAS, J., concur.

Patrick J. Savieo v. The City of New Haven (4/7/05 IndCtApp) [Torts]
Crone, Judge
Patrick J. Savieo (“Patrick”), personal representative of the wrongful death estate of his father, Jon A. Savieo (“Jon”), appeals the trial court’s grant of summary judgment in favor of the City of New Haven (“the City”). We affirm.

The dispositive issue is whether the City is entitled to immunity for any breach of its duty to prevent Jon’s suicide. * * *

We note, however, that the scope of governmental immunity is not limited solely to those statutory grounds. In Benton v. City of Oakland City, 721 N.E.2d 224 (Ind. 1999), our supreme court observed [citing from the 1972 case of Campbell v. State]

Campbell identified three situations where governmental units would not be liable for “acts or omissions which might cause damage to persons”: (1) where a city or state fails to provide adequate police protection to prevent crime, id. (citing Simpson’s Food Fair, Inc. v. City of Evansville, 149 Ind.App. 387, 272 N.E.2d 871 (1971), transfer denied); (2) where a state official makes an appointment of an individual whose incompetent performance gives rise to a suit alleging negligence on the part of the state official for making such an appointment; and (3) where judicial decision-making is challenged, id. (citing Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967)).
* * * To the extent that the police are expected to prevent threatened suicides in noncustodial cases, we conclude that this duty is so closely akin to the duty to prevent crime that it should be treated as fitting within that limited exception to the general rule of governmental liability. See Fair v. State, 627 N.E.2d 427, 431 (Ind. 1993) (recognizing that “police are expected not only to enforce the criminal laws but also to aid those in distress, abate hazards, prevent potential hazards from materializing, and perform an infinite variety of other tasks calculated to enhance and maintain the safety of communities”). We therefore hold that the City is entitled to immunity for Lt. Baatz’s failure to prevent Jon’s suicide. Accordingly, we affirm the trial court’s grant of summary judgment in favor of the City. Affirmed.
RILEY, J., and VAIDIK, J., concur

Michael B. Montgomery v. The Board of Trustees of Purdue University
(4/7/05 IndCtApp) [Employment Law]
Crone, Judge
* * * Montgomery presents three issues for review, one of which we find dispositive: whether Purdue is an “employer” for purposes of the Indiana Age Discrimination Act (“IADA”). * * *

Indiana Code Section 22-9-2-2 states, “It is declared to be an unfair employment practice and to be against public policy to dismiss from employment, or to refuse to employ or rehire, any person solely because of his age if such person has attained the age of forty (40) years and has not attained the age of seventy (70) years.” Indiana Code Section 22-9-2-1 provides that an “employer” for purposes of the IADA does not include “a person or governmental entity which is subject to the federal Age Discrimination in Employment Act [“ADEA”] (29 U.S.C. 621 et seq.).” Both parties agree that Purdue is a governmental entity, but they disagree whether Purdue is “subject to” the ADEA. * * *

In Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), the United States Supreme Court limited the relief available to state employees under the ADEA. * * *

The question here is whether, notwithstanding Kimel, Purdue is “subject to” the ADEA and therefore not an “employer” for purposes of the IADA. Both parties agree that the Eleventh Amendment shields Purdue, an instrumentality of the state, from private actions for monetary damages under the ADEA. See Kashani, 813 F.2d at 848. Montgomery contends that Purdue is therefore not “subject to” the ADEA. Purdue disagrees, contending that it is “a governmental entity which is ‘subject to’ the ADEA through private actions by employees for injunctive relief and by direct enforcement by the [EEOC]. Purdue also observes that the First Circuit has held that the ADEA remains applicable to and may be enforced against the states. See State Police for Automatic Retirement Ass’n v. DiFava, 317 F.3d 6 (1st Cir. 2003).

In DiFava, the plaintiff organization sought to overturn the permanent injunction of a mandatory retirement law for the Massachusetts state police force, claiming that Kimel had rendered the ADEA inapplicable to the states. The First Circuit disagreed * * *

We find the DiFava court’s analysis persuasive and agree with Purdue that it remains “subject to” the ADEA’s enforcement provisions as detailed above and is therefore not an “employer” for purposes of the IADA. Consequently, Montgomery has failed to state a claim upon which relief can be granted. We therefore affirm the trial court’s dismissal of Montgomery’s age discrimination claim and its entry of judgment on the pleadings. Affirmed.
RILEY, J., and ROBB, J., concur.

Andra Thompson v. State of Indiana (4/7/05 IndCtApp) [Criminal Law & Procedure]
Najam, Judge

Andra Thompson appeals his conviction for Possession of Cocaine, as a Class C felony, following a bench trial, and presents a single issue for review: whether the trial court abused its discretion when it admitted into evidence cocaine officers recovered from between Thompson’s buttocks during a strip search incident to his arrest, which was filmed by a civilian camerawoman. We reverse and remand. * * *

Here, again, the officers had not obtained a warrant, but searched Thompson incident to his arrest. Unlike in cases where a warrant has issued, the officers in this case were not relying on a probable cause determination made by a neutral and detached magistrate. To the contrary, the officers were in complete control of the circumstances surrounding the strip search, and they permitted the civilian camerawoman to film Thompson naked below the waist.

We hold that the good faith exception to the exclusionary rule does not apply here. Thus, we conclude that the trial court abused its discretion when it admitted the cocaine recovered from Thompson’s buttocks into evidence. We reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
KIRSCH, C.J., and VAIDIK, J., concur

James Wilson v. State of Indiana (4/7/05 IndCtApp) [Criminal Law & Procedure]
May, Judge
James Wilson appeals his conviction of possession of cocaine as a Class A misdemeanor. See footnote Wilson argues on appeal the police illegally stopped and searched him, but we address instead the dispositive issue of whether Wilson abandoned the cocaine prior to its seizure by police officers. We affirm. * * *

Wilson dropped the bag underneath the parked car while riding his bicycle away from the officers. He had not complied with their request that he stop. Only after Wilson dropped the bag and declined to comply with their request did the officers use force to remove Wilson from the bicycle and handcuff him. When Wilson threw the black cloth bag to the ground, the items were subject to lawful seizure by the police. Wilson had not been “seized” at the time he dropped the black cloth bag; therefore, the bag containing cocaine was not the product of a seizure and was properly admitted into evidence over Wilson’s Fourth Amendment objection. Affirmed.
DARDEN, J., and BARNES, J., concur

Posted by Marcia Oddi on Thursday, April 07, 2005
Posted to Ind. App.Ct. Decisions

Ind. Law - This bill hazardous to Hoosiers' health

"This bill hazardous to Hoosiers' health" is the heading to the lead editorial today in the Indianapolis Star. Some quotes:

A back-door legislative maneuver to limit the ability of state agencies to regulate the environment and deal with public health emergencies needs to be stopped.

Provisions barring the state's air pollution and water pollution control boards from adopting rules or standards more stringent than federal regulations were slipped into Senate Bill 298, a measure dealing with regulations affecting small businesses. According to state Sen. Beverly Gard, Republican chairwoman of the Energy and Environmental Affairs Committee, the amendments were an "end run" around her committee.

"It's a terrible piece of legislation that has serious consequences," the normally reserved legislator said. "We abdicate to the feds to set all of our environmental policy."

The measure could make it impossible for state environmental agencies to establish health-based standards and reporting requirements if a cluster of health problems should emerge. Indiana rule makers could be hamstrung dealing with issues unique to Indiana that the federal government doesn't address. Almost any state rule dealing with the air, water or the disposal of hazardous waste could be tied up in court for years.

The state might as well abolish its environmental boards. They would be nothing more than handmaidens to federal bureaucrats. * * *

SB 298 is now in a legislative conference committee. The amendments should be removed from the bill. If not, the governor should veto the legislation.

Looking at its history, SB 298 was prepared by the administrative rules oversight committee. Here is the introduced version. It proposed some tweaks to the administrative rulemaking statute requiring an agency to submit a rule with an estimated economic impact greater than $500,000 to the legislative services agency (LSA) for a fiscal impact statement. The "regulations dealing with small business" the Star editorial refers to were added in House Committee (see committee report). They include not only the "no more stringent provisons" references in the editorial, but much more. See the most recent digest here.

Posted by Marcia Oddi on Thursday, April 07, 2005
Posted to Administrative Law | Environment | Indiana Law

Ind. Decisions - 7th Circuit posts four today

Bintz, Robert v. Bertrand, Daniel (ED Wis.) [18 pp.]

Before POSNER, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. Robert Bintz and his brother, David Bintz, were convicted, in separate Wisconsin state court proceedings, of murdering a bartender, Sandra Lison. After failing in his state appellate challenge to his conviction, Robert sought habeas corpus relief in the United States District Court for the Eastern District of Wisconsin, asserting that the state courts improperly allowed hearsay statements to be used against him at trial. The Eastern District denied the petition for writ of habeas corpus, and Robert appeals. We affirm. * * *

Robert Bintz has failed to show that the Wisconsin courts acted unreasonably when denying his Confrontation Clause claims. Those claims that were not procedurally defaulted were properly analyzed under the relevant Supreme Court precedent. We AFFIRM the denial of the petition for writ of habeas corpus.

USA v. Schlifer, James T. (WD Wis.) [10 pp]

Before KANNE, EVANS and WILLIAMS, Circuit Judges
WILLIAMS, Circuit Judge. James Schlifer appeals his sentence of 120 months on the ground that the district court violated the Sixth Amendment by sentencing him as a career offender without presenting the facts underlying his prior convictions to a jury. He also argues that in light of the Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005), the district court erred in applying the guidelines under the prior mandatory sentencing scheme. Although Schlifer’s Sixth Amendment argument lacks merit, we vacate his sentence and remand for resentencing because the district court erred under Booker by sentencing Schlifer under a mandatory guidelines system, and the government has not demonstrated that the error was harmless. * * *

Prior to the Supreme Court’s decision in Booker, Schlifer’s appeal would have been frivolous. Neither the Supreme Court’s decision in Blakely nor this court’s opinion in Booker disturbed the principle that the “fact of a prior conviction” falls outside the Apprendi rule that facts increasing a sentence beyond the otherwise applicable statutory maximum must be proved to a jury beyond a reasonable doubt. * * *

This is not a plain error case, and our recent decision in Paladino is inapposite here. Schlifer was sentenced prior to the Supreme Court’s opinion in Booker, but he objected to his sentence in the district court on Blakely grounds. Schlifer also anticipated the possibility that the guidelines were severable. His objection was specific enough to preserve the argument he makes now about the mandatory character of his sentence because it was sufficient to alert “the court and opposing party to the specific grounds for the objection.” * * *

Because, in effect, the district court’s error amounts to a misapplication of the guidelines, Schlifer’s sentence must be vacated unless the error was harmless. * * *

The government ultimately fails to meet its burden of demonstrating that, if the district court had known that the guidelines are advisory rather than mandatory, its choice of sentence would have been the same. While the result might be different under a plain error standard, where the defendant has the burden of demonstrating that his substantial rights were affected, in this case the error cannot fairly be deemed “harmless.”

III. CONCLUSION. For the reasons stated above, we VACATE Schlifer’s sentence and REMAND the case to the district court with instructions to resentence in light of Booker. This opinion was circulated to the entire court before issuance. No member of the court in active service voted to hear the case en banc.

Benefiel, Bill J. v. Davis, Cecil (SD Ind., Richard L. Young, Judge) [5 pp.]

Before BAUER, EASTERBROOK, and EVANS, Circuit Judges. EASTERBROOK, Circuit Judge. Bill Benefiel, who is under sentence of death, exhausted his claims in state court, and this court held that he is not entitled to federal collateral relief. Benefiel v. Davis, 357 F.3d 655 (7th Cir.), cert. denied, 125 S. Ct. 481 (2004). Indiana has set an execution date of April 21, 2005.

Benefiel wants another round of federal collateral review. §2244(b). To obtain it, he needs this court’s permission under 28 U.S.C. But he has not applied under this provision, doubtless because his lawyers recognize that its conditions cannot be satisfied. * * *

The judgment of the district court is affirmed. The motion to recall the mandate in No. 03-1968 is denied. The motion for a stay of execution is denied. Treating the papers as a request to initiate a second federal collateral attack, we deny that application.

McElroy, Donnie v. Lopac, Gary (ND Ill.) [7 pp.]

Before FAIRCHILD, KANNE, and EVANS, Circuit Judges.BR> PER CURIAM. Pro se state prisoner Donnie McElroy sued several prison officials under 42 U.S.C. § 1983, claiming that they falsely charged him with a disciplinary violation and fired him from his prison job in retaliation for exercising his First Amendment right to free speech. Screening the case under 28 U.S.C. § 1915A, the district court dismissed the complaint for failure to state a claim because, in the court’s view, McElroy did not “specify a specific event, chronology, or reason for retaliation.” We affirm, but for different reasons. * * *

FAIRCHILD, Circuit Judge, dissenting. I agree that McElroy’s complaint should not have been dismissed for failure to describe the retaliatory conduct more particularly. Respectfully, however, I do not agree that it should be dismissed because the speech which allegedly caused the retaliation was not a matter of public concern and therefore not protected.

Posted by Marcia Oddi on Thursday, April 07, 2005
Posted to Ind. (7th Cir.) Decisions

Environment - IDEM recommends centralized manure composting facility

A story today by Seth Slabaugh in the Muncie Star-Press reports:

ANDERSON - State officials suggest creating a centralized manure composting facility and taking other steps to reduce E. coli bacteria in several tributaries of the White River in Delaware, Madison, Hamilton and Tipton counties.

Consultants and representatives of the Indiana Department of Environmental Management today (Thursday) will present a draft plan to improve the quality of water in Killbuck, Pipe, Duck and Stony creeks. * * *

The draft plan recommends that farmers follow manure application rates; exclude livestock from the tributaries by fencing; leave stalks and leaves of harvested crops on their fields to reduce runoff; and consider establishing a centralized composting facility.

Farmers could receive incentive payments and cost sharing from the federal government for such practices, said Michael Hughes, district conservationist in Delaware County for the Natural Resources Conservation Service. However, there is never enough funding to go around for every farmer who applies for such assistance.

In some regions of the country, farmers have created central facilities where larger farmers take excess manure to be composted and sold to smaller farmers or other users as fertilizer and topsoil supplement, according to the plan.

The plan also recommends making a concerted effort to educate the owners of failing septic systems about having their systems inspected, repaired and pumped out, if necessary.

Posted by Marcia Oddi on Thursday, April 07, 2005
Posted to Environment

Ind. Courts - Supreme Court on campus

The Fort Wayne Journal Gazette reports today, complete with photos, on yesterday's Supreme Court oral argument held at Huntington College. For background, including case links, see this March 31st ILB entry.

Posted by Marcia Oddi on Thursday, April 07, 2005
Posted to Indiana Courts

Environment - Hopkins sewage proposal dropped

"Hopkins sewage proposal dropped: Firm's plan to bury sludge met with public resistance" is the headline to a story today in the Louisville Courier Journal , a follow-up to a LCJ story from March 19th that was summarized in this ILB entry. Some quotes from today's story:

Blaming "environmental hysteria in the media," the company that wanted to truck 500 tons a day of Nashville's sewage sludge to Hopkins County in Western Kentucky has withdrawn its proposal for the project.

In an April 5 letter to Kentucky regulators made public yesterday, BioReclamation LLC manager Charles W. Martin said the company feared that the Kentucky Environmental and Public Protection Cabinet was going to "proactively scrutinize" the proposal in ways that exceed state requirements. * * *

Many had expressed concern about the large volume of sludge headed for Hopkins County, and feared that its treatment in the unlined trenches would taint groundwater, produce strong odors and attract swarms of flies.

"I don't think there's anyone in the state of Kentucky who would have wanted this coming to their homes," said Patricia Hawkins, Hopkins County judge-executive. "You can probably feel my smile through the telephone. I'm delighted with this news."* * *

Louisville environmental attorney Tom FitzGerald, director of the Kentucky Resources Council, had challenged the permit application in two letters to the state and has been helping Hopkins County draft its ordinance.

"To suggest the outcry was preordained by a hysterical public is inaccurate," he said yesterday. "Whenever you propose to bring 500 tons a day of active sewage sludge into a community with no public hearing, no notice to local government and no opportunity for local input, what do you expect?"

Posted by Marcia Oddi on Thursday, April 07, 2005
Posted to Environment

Wednesday, April 06, 2005

Environment - St. Joseph and Elkhart counties taken off EPA list

An AP story posted this afternoon on the Indianapolis Star website reports:

WASHINGTON -- The Environmental Protection Agency announced Tuesday that 21 counties in nine states are being removed from the government's watch list of areas in the country with the dirtiest air.

St. Joseph and Elkhart counties in northern Indiana were among those removed, the agency said. * * *

The agency said the review indicated that certain areas now have air that is free of dangerous levels of soot, which comes from power plants, car exhaust, diesel-burning trucks, wood-burning stoves and other sources. * * *

EPA's decision also is considered a boon for local officials working to attract development and jobs to their areas.

"These counties will be able to enjoy the benefit of these improvements, both in terms of improved public health and in terms of greater job-creation potential," said Voinovich, who referred to the designations as "economy-strangling limits."

Here is the US EPA press release.

Posted by Marcia Oddi on Wednesday, April 06, 2005
Posted to Environment | Indiana economic development

Ind. Gov't. - More on "IEDC fails early public records test"

Following up on Sunday's ILB entry titled " IEDC fails early public records test," based on a story of that date in the NW Indiana Times -- here are copies of the documents mentioned in that story, the PAC informal opinion, and the letter from the IEDC's counsel.

[Thanks to the NWI Times for responding to my request to post copies of these documents.]

Posted by Marcia Oddi on Wednesday, April 06, 2005
Posted to Indiana Government

Ind. Decisions - 7th Circuit posts three today (at least so far)

Peoples, Robin v. USA (ND Ind., Robert L. Miller, Jr., Chief Judge) [8 pp.]

Before EASTERBROOK, RIPPLE, and WILLIAMS, Circuit Judges
EASTERBROOK, Circuit Judge. Robin Peoples is here for the third time contesting his convictions for bank robbery and associated offenses. Each time he has argued that he received ineffective assistance of counsel. Twice we resolved this claim on the merits; that is enough (if not once more than enough), and we decline to revisit the subject. * * * Affirmed.

USA v. Tedder, David H. (WD Wis.) [14 pp.]

Before CUDAHY, EASTERBROOK, and WILLIAMS, Circuit Judges. EASTERBROOK, Circuit Judge. For using his law license to help offshore gambling businesses conceal their identities and income, David Tedder has been convicted of conspiring to defraud the United States, see 18 U.S.C. §371, by assisting a wagering enterprise that violated 18 U.S.C. §1084, plus three counts of money laundering, see 18 U.S.C. §1956(h), §1957. No longer a member of the bar, Tedder is serving a sentence of 60 months’ imprisonment and has been fined more than $1 million; the district court also ordered almost $2.8 million to be forfeited. (Tedder resigned from the California bar to forestall resolution of disciplinary charges. He has been enjoined from practicing law in Florida, which he had done there despite his lack of a license. Florida Bar v. Tedder, 790 So. 2d 1110 (2001) (table).) * * *

Whether this conclusion will benefit Tedder in the end is a question for the district judge. Booker provides district judges with additional discretion, so on remand the judge might reimpose the 60-month sentence if she thinks it the most appropriate response to Tedder’s crimes and risks of recidivism; appellate review after Booker is for reasonableness. But our holding makes the range of 37 to 46 months’ imprisonment available without any need to justify departure from the Guidelines.

The judgment is affirmed except with respect to the term of imprisonment. That aspect of the judgment is vacated, and the case is remanded with instructions to resentence Tedder in light of Booker and this opinion.

Frey, Sarah E. v. EPA (SD Ind., Richard L. Young, Judge) [14 pp.]

Before EASTERBROOK, WOOD, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. In this successive appeal, we confront another chapter in the long history of certain Superfund sites located near Bloomington, Indiana. The sites are contaminated with polychlorinated biphenyls (PCBs), dioxin, and other toxic chemicals. Sarah Frey, Kevin Enright, and the organization Protect Our Woods (to whom we refer collectively as “Frey”) are before us once again, trying to invoke the citizen suit provision of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). That law, in general, permits a plaintiff to challenge cleanup efforts at Superfund sites once the Environmental Protection Agency (EPA) and other responsible parties proclaim their work to be completed. 42 U.S.C. § 9613(h)(4); Frey v. EPA, 270 F.3d 1129, 1133 (7th Cir. 2001) (Frey I). Frey argues that her suit meets the statutory criteria, because EPA has completed the excavation of PCBs and has not yet selected further remedies. The district court saw matters differently; it found that Frey’s action was (still) premature because EPA has made it clear that it is studying further cleanup options for the three sites challenged in this lawsuit: Lemon Lane Landfill, Neal’s Landfill, and Bennett’s Dump. We conclude, however, that because EPA has failed to provide any objective referent by which to measure its progress, Frey is finally entitled to her day in court. We reverse. * * *

We recognize that Congress intended for remedial action to be complete before permitting judicial review. Frey I, 270 F.3d at 1133; Schalk, 900 F.2d at 1095. Congress did not, however, intend to extinguish judicial review altogether. North Shore Gas Co. v. EPA, 930 F.2d 1239, 1245 (7th Cir. 1991). After a very long wait, the citizens of Bloomington are finally entitled to their day in court.

IV. For these reasons, we REVERSE the judgment of the district court and REMAND for proceedings consistent with this opinion.

Posted by Marcia Oddi on Wednesday, April 06, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Lake level case appealed to Indiana Supreme Court

"Lake level case appealed to Indiana Supreme Court" is the title to a story today on the South Bend Tribune by Jennifer Ochstein. Some quotes:

BREMEN -- Some property owners at Lake of the Woods are trying to keep their fight alive.

So their attorney, Marty Lucas, has appealed to the big gun -- the Indiana Supreme Court -- to maintain Lake of the Woods near Bremen at one water level instead of two.

It is unclear at this point, though, if the state's high court will allow the transfer.

Several court decisions have nixed the Lake of the Woods Property Owners Association's legal bid to change the current practice of raising and lowering the level of the lake with what they call a "water control structure."

Despite being shot down recently by the Indiana Court of Appeals, Lucas said his clients are hoping the Supreme Court overrides the appeals court decision to side with the farmers in the case.

The case is Matter of the Change of the Established Water Level of Lake of the Woods (2/22/05 IndCtApp) -- ILB entry here. "Lucas" is North Judson attorney Marty Lucas of the BigEastern blog.

Posted by Marcia Oddi on Wednesday, April 06, 2005
Posted to Ind. App.Ct. Decisions

Ind. Law - Turning back judicial clock

"Turning back judicial clock" is the title of a must-read editorial today in the Fort Wayne Journal Gazette about Senate Bill 96, which would change Indiana's sentencinglaw. Background on this bill may be found in this ILB entry - read particularly the last quote.

From today's editorial:

If the Indiana Supreme Court has already ruled that judges have too much power in adding years to prison terms, why is the General Assembly about to give them even more influence? A Senate proposal, which is moving toward the governor’s approval, will take Indiana back to the time of indeterminate sentences and other relics of criminal justice.

Because the court nullified parts of the state’s sentencing structure, Senate Bill 96, amended by the House last week, would remove the need for judges to find aggravating circumstances to sentence a criminal to the statutory maximum. Sen. David Long, R-Fort Wayne, does not foresee any problem with the proposal moving on to Gov. Mitch Daniels’ desk.

The current criminal sentencing guidelines provide a presumptive sentence for judges to follow. For example, someone convicted of rape faces a 10-year sentence. A judge could have added 10 more years to the sentence in the face of aggravating circumstances, including the nature of the crime, the victim, the criminal’s character and the possibility the person will commit another crime. But in early March, the Indiana high court, following a U.S. Supreme Court ruling late last year, determined the scheme unconstitutional. Both courts said that the maximum sentence a judge should impose must be based on the facts presented to the jury or admitted by the defendant.

After the U.S. Supreme Court’s ruling, some jurisdictions, including Allen Superior Court, adopted a bifurcated trial system, where juries heard, post-conviction, aggravators and mitigators, circumstances that would raise or lower the presumptive sentence. However, it is a time-consuming and costly process.

Under SB 96, a court could impose any sentence that is permitted by statute and the state constitution regardless of aggravating circumstances. For example, a judge would be permitted to sentence someone dealing 10 pounds or more of marijuana, a Class C felony, anywhere in the range of two to eight years. The advisory sentence is four, but it is non-binding.

The problem is this proposal pushes justice back to an age when judges wielded supreme authority. SB 96 lends authority to judges who believe in a one-size-fits-all, throw-the-book-at-’em approach to prison terms – which plays well in elections – rather than accept that rehabilitation is a better course for some. Is this really what Indiana needs?

Posted by Marcia Oddi on Wednesday, April 06, 2005
Posted to Indiana Law

Law - U.S. told to pay for Kentucky land it seized

The Louisville Courier Journal reports today, in a lengthy story by James Malone:

Fearing coastal attacks during the early fever pitch of World War II, the Army took 36,000 acres of rolling farmland in Western Kentucky's Union and Webster counties to build Camp Breckinridge in 1942 to train soldiers.

Hundreds of families had to leave, mistakenly believing they might be allowed to buy back their property someday.

Now a federal judge has ruled that about 1,000 landowners and descendants are due $32 million in profits that the government made in 1965 by selling the land's mineral rights to oil, coal and power companies. * * *

Friday's ruling by U.S. Court of Federal Claims Judge Susan Braden in Washington, D.C., is the result of five decades of perseverance by landowners and their heirs to get fair compensation for their property.

The Justice Department, which defended the government, is reviewing the decision and will be discussing the appropriate next steps, spokesman Ben Porritt said. Checks may not be passed out anytime soon.

The government can appeal the April 1 ruling. And Braden has asked lawyers for the landowners and government for briefs within 60 days to recommend ways to execute the judgment and distribute the money, according to Stephen Pitt, the Louisville lawyer who has represented the landowners.

Moreover, Pitt said he did not know whether the $32 million would be adjusted for inflation and would include interest. * * *

[T]he land was declared surplus property after the Korean War, and the government sold it off in large tracts that average farmers could not afford, according to court records and exhibits. And it made $32 million in extra profit by selling mineral rights separately.

Former landowners who complained said the message to them was simple: tough luck.

The first civil suit was filed in 1965, but a federal judge ruled against the landowners after a trial. When sales of surplus property began, government officials assured members of Congress that the property would be sold off in tracts similar in size to the tracts it acquired, court record show.

Maureen Hayden of the Evansville Courier& Press also has a story on the ruling. Some quotes:
The ruling, issued late last week by U.S. Court of Federal Claims Judge Susan Braden, says the federal government "unjustly profited" from the sale of 36,000 acres in farmland condemned in 1942 to make way for the Camp Breckinridge military installation during World War II.

Braden ruled on the side of the 1,000-plus plaintiffs who contended the federal government forced their families off their farmland by purchasing the land at rock-bottom prices with the promise the families could buy the property back after the war was over. Most families were given 30 days to leave their homes and many weren't paid until after the war, Braden notes in her ruling. Braden also notes how the federal government hung onto the land, which it bought for a total of $3.2 million in 1942, and resold it to oil, gas and coal developers for more than $35 million in 1965. That decision, she ruled, allowed the government to "unjustly profit" at the expense of hundreds of landowners whose farms had been in their families for generations. * * *

In her ruling, Braden found that initially both the government land agents and the property owners mistakenly undervalued the property's worth back in 1942. But Braden also noted that the federal government found out after the war just how rich the land was in coal, oil and gas.

In her ruling, Braden said government agents then made secret deals with oil, gas and coal companies, offering some of most mineral-rich land through a private auction, closed to the public. In her ruling, Braden also chastises U.S. Department of Justice lawyers for "sandbagging" the lawsuit, brought by descendants of the property owners in 1965, after much of the property was sold. Braden also noted a number of the original plaintiffs in the lawsuit - many who were children of farmers forced to sell their land - are now dead.

In her ruling, Braden also notes how the government lost or misplaced documents along the way, and went through a revolving door of lawyers, whose replacements delayed the case even longer. She also chastises Justice Department lawyers for their attempts to quash the taped depositions of some of the original landowners, now dead. Justice Department lawyers argued those depositions, many taken in 1995, shouldn't have been allowed in the case because the people being deposed were elderly, and therefore incompetent to give an accurate accounting of events that had occurred 50 years earlier. Braden rejected that argument, noting in her ruling that she found the depositions clear and cogent.

Here is the 81-page opinion, LAND GRANTORS IN HENDERSON, UNION, and WEBSTER COUNTIES, KENTUCKY and THEIR HEIRS, v. THE UNITED STATES.

Posted by Marcia Oddi on Wednesday, April 06, 2005
Posted to General Law Related

Tuesday, April 05, 2005

Ind. Decisions - 7th Circuit posts three more today, making five total

Massey, Donald E. v. Baker O'Neal Holding (SD Ind., David F. Hamilton, Judge) [8 pp.]
Affirmed

USA v. Rand, Daniel D. (ND Ind., Rudy Lozano, Judge) [10 pp.]

Before FLAUM, Chief Judge, and CUDAHY and POSNER, Circuit Judges.
CUDAHY, Circuit Judge. Appellant Daniel Rand pleaded guilty to a charge of conspiracy relating to an identity-theft scheme. Pursuant to this scheme, Rand and his co-conspirators stole personal information from (among others) employees of the Gary, Indiana public school system, used that information to obtain credit cards and made purchases with those credit cards. Based upon his guilty plea, Rand was sentenced to 21 months in prison and ordered to pay restitution in excess of $57,000. Rand now appeals this restitution order, claiming that the district court impermissibly included in its calculation losses of identity-theft victims not listed in the indictment or specifically identified in Rand’s guilty plea. * * * Affirmed.

B.E.L.T. Inc v. Wachovia Corporation (ND Ill.) [7 pp.]
Affirmed

Posted by Marcia Oddi on Tuesday, April 05, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals posts three today

In the Matter of A.I., Jennifer Inkenhaus v. Vanderburgh Co. Office of Family & Children (4/5/05 IndCtApp) [Family Law]
Barnes, Judge

Jennifer and Alan Inkenhaus separately appeal the termination of their parental rights as to their daughter, A.I. We affirm. * * *

Conclusion. The trial court’s findings are supported by the evidence and, therefore, support the decision to terminate the parties’ parental rights. The parties have not demonstrated violations of their procedural or substantive due process rights. Therefore, we affirm the trial court’s order terminating the parties’ parental rights as to A.I. Affirmed.
NAJAM, J., concurs.
SULLIVAN, J., concurs as to Parts I (B) and (C), Parts II (A) and (B) and concurs in result as to Part I (A). [without opinion]


The City of South Bend, Indiana, et al v. Century Indemnity Co., et al
(4/5/05 IndCtApp) [Insurance]
PETITION ON REHEARING
ROBB, Judge
The City of South Bend, Indiana and the South Bend Redevelopment Commission (collectively, the “City”) filed a declaratory judgment action against Certain Underwriters at Lloyd’s, London, and Certain London Market Insurance Companies, Century Indemnity Company, and Zurich American Insurance Company (collectively, the “Insurers”), seeking a declaration that the Insurers are obligated to provide insurance coverage for certain environmental liabilities. The trial court dismissed the action, and we reversed, holding that this action was not a prohibited direct action. City of South Bend v. Century Indem. Co., 821 N.E.2d 5, 13 (Ind. Ct. App. 2005) [see 1/18/05 ILB entry here]. The City has petitioned for rehearing, asking that we address the issue, raised in its brief, of whether Indiana Code section 27-1-13-7 applies to this action. * * *

We decline to judicially add “dissolution” to the statute at issue here. Moreover, as the Insurers point out in their response, the statute requires liability on the part of the insured. As Studebaker’s liability was foreclosed by Michigan law as of 1971, even if the statute applied to dissolved corporations, it would not apply to Studebaker.

Subject to the above clarifications, we affirm our earlier holding.
KIRSCH, C.J., and BAKER, J., concur.

For background on this case, see this 1/20/05 ILB entry.

Jed A. Williamson v. Susan Williamson (4/5/05 IndCtApp) [Family Law]
Sharpnack, Judge

* * * Because the deemed denied provisions of Ind. Trial Rule 53.3 are “automatic” and “self-activating upon the passage of the requisite number of days,” the trial court had no power to rule on Mother’s motion to correct error because the motion had already been deemed denied. Id. Consequently, we conclude that the trial court was without authority to grant Mother’s motion to correct error in March 2004. In doing so, we recognize that the trial court had been inundated with various motions and hearings from these parties and had often been required to continue hearings because of insufficient time to address each of the parties’ numerous motions and arguments. However, we are constrained to apply Ind. Trial Rule 53.3 as it is written. As a result, we conclude that the trial court abused its discretion by denying Father’s motion to correct error.

For the foregoing reasons, we affirm the trial court’s modification of child custody and reverse the denial of Father’s motion to correct error.
Affirmed in part and reversed in part.
FRIEDLANDER, J. concurs
BAKER, J. concurs in part and dissents in part with separate opinion. * * * I fully concur with the majority’s holding that the trial court properly modified custody as to Kr.W. and the holding as to the child support order. However, I cannot agree with its finding that Trial Rule 53.3 operated to preclude the trial court’s authority to grant Mother’s motion to correct error.

In my view, three reasons exist for affirming the trial court’s determination: 1) The existing case law does not impose a “bright-line rule” that would render all belatedly granted motions void; 2) Father did not object to the later settings, and, notably, the first postponement was at Father’s request; thus, Father acquiesced in and invited any error; and 3) the trial court’s determination as to Mother’s arrearage was incorrect, and its continuing jurisdiction over child support matters would extend to arrearage determinations. * * *

Posted by Marcia Oddi on Tuesday, April 05, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts two today

Kircher, Carl v. Putnam Funds Trust (SD Ill.) [10 pp.]

Before EASTERBROOK, RIPPLE, and WOOD, Circuit Judges.
EASTERBROOK, Circuit Judge. Complaints filed in the circuit court of Madison County, Illinois, charge several mutual funds with setting prices in a way that arbitrageurs can exploit. The funds removed the suits to federal court and asked the district judges to dismiss them under the Securities Litigation Uniform Standards Act of 1998 (SLUSA). Instead the federal judges remanded each suit. Last year we held that these remands are appealable. See Kircher v. Putnam Funds Trust, 373 F.3d 847 (7th Cir. 2004). Now we must decide whether SLUSA blocks litigation in state court. (Plaintiffs have asked us to overrule our decision about appellate jurisdiction, but their arguments are unpersuasive.) * * *

We hold that SLUSA is as broad as §10(b) itself and that limitations on private rights of action to enforce §10(b) and Rule 10b-5 do not open the door to litigation about securities transactions under state law. Plaintiffs’ claims are connected to their own purchases of securities and thus are blocked by SLUSA, whose preemptive effect is not confined to knocking out state-law claims by investors who have winning federal claims, as plaintiffs suppose. It covers both good and bad securities claims—especially bad ones. The judgments of the district courts are reversed, and the cases are remanded with instructions to undo the remand orders and dismiss plaintiffs’ state-law claims.

USA v. Askew, Ulice (ND Ill.) [23 pp.]
Before RIPPLE, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Ulice Askew challenges the sufficiency of the evidence supporting his conviction under 21 U.S.C. § 846 for conspiracy to possess with intent to distribute PCP. He argues that the only credible evidence against him established one PCP spot purchase amounting to a buyer-seller relationship only, not a conspiracy. Relatedly, Askew argues that the district judge committed plain error by failing to supply the jury with a buyer-seller instruction. He also asserts that the judge failed to answer appropriately the jury’s questions during deliberations about the conspiracy count. His final ground for appeal alleges that the judge committed plain error when she failed to suppress evidence obtained through an unconstitutional stop that led to his arrest. For the reasons discussed below, we affirm. * * *

III. Conclusion. Because we find no merit in any of the arguments Askew raises on appeal, his conviction is AFFIRMED. As to Askew’s sentence, however, we order a limited remand of this case in accordance with the remedial procedure adopted by this circuit in Paladino. The district court is directed to return this case to us at the completion of its sentencing determination, pursuant to the procedure set forth in Paladino.

Posted by Marcia Oddi on Tuesday, April 05, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Regulation of Indy adult entertainment operations

The Indianapolis Star has an editorial today on an opinion issued last week by United States District Judge Sarah Evans Barker:

[I]n a ruling last week allowing the city to regulate certain aspects of adult entertainment operations, Barker gave the city much of what it wanted. The judge upheld restrictions on hours of operation and a ban on doors of booths in X-rated stores, where police say illicit sexual activities take place.

Barker said the city met its burden of showing that adult businesses spawn enough crime to warrant the restrictions.

Although adult bookstores involved in the litigation found an expert witness who claimed criminal activity doesn't appreciably increase in neighborhoods around the businesses, Barker said she found reports of actual police runs to adult bookstores much more "compelling."

At best the businesses attract unsavory characters to neighborhoods. At worst, they spawn prostitution, lewd activity and other crimes.

Unfortunately, Barker stopped short of allowing inspectors unrestricted access to adult bookstores without notice during business hours. She said it would violate constitutional restrictions against warrantless searches. An inability to fully inspect the businesses during unannounced visits makes it difficult to determine if illicit back-room activity is taking place.

Nevertheless, the judge has given the city a valuable tool in placing sensible restrictions on the hours and activities of businesses that many people in this community would prefer didn't exist in the first place.

The opinion is not yet available on the SD Indiana website.

Posted by Marcia Oddi on Tuesday, April 05, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Law - Notable entries this morning from other Indiana law blogs

To start off the morning, I loved this entry from Doug Masson's blog, about Indiana's brain drain.

And I marveled again at the analytical pieces Michael Ausbrook writes for his blog, INCourts, including this one from yesterday - a quote

Since Holden, Stott, and McGinity each stand for a different method of assessing Blakely error, I thought I'd make the mistake of seeing who voted for what when. * * *

What an appellate judge does with an error once found, it seems to me, is even more of the essence of appellate judging than finding the error in the first instance. And the outcome of any given case may well depend on which of the the three methods a Court of Appeals panel chooses to employ.

For the moment, it would appear that any judge may choose any method in any case at will.

Posted by Marcia Oddi on Tuesday, April 05, 2005
Posted to Indiana Law

Monday, April 04, 2005

Ind.Decisions - Indiana tongue stud case cited

A story today in the North Platte Bulletin (Nebraska), complete with this not-to-be-missed photo, reports that:

A judge in Lincoln Count has ruled that wearing a tongue stud will not get a suspected drunken driver off the hook.

Judge Kent Turnbull recently rejected an argument from an attorney who argued that a Breathalyzer test should not be admitted as evidence against his client because the man wore a stud in his tongue. The stud was a foreign object, he argued, and police should have removed it before administering the test. * * *

His attorney, Russ Jones, of North Platte, noted the Indiana Court of Appeals had ruled that an officer's failure to remove a tongue stud violated state law and made a breath test inadmissible as evidence.

Turnbull said the question of whether a tongue stud could influence the result of a breath test could be argued at trial, but it cannot be ruled inadmissible.

Perhaps the Indiana decision should have been "Shepardized." The case referenced is Brenna Guy v. State of Indiana (4/2/04 IndCtApp), where the Court of Appeals held: "[A] breath test given to a woman wearing a stainless steel stud in her pierced tongue is inadmissible in court because the stud is a "foreign" object."

However, the Indiana Supreme Court vacated the Court of Appeals decision, granted a petition to transfer and, in Brenna Guy v. State of Indiana (3/2/05 IndSCt), ruled:

The trial court denied Brenna Guy’s motion to suppress the results of her breath test, administered to assess intoxication. This interlocutory appeal presents the question whether a tongue stud inserted in her mouth more than twenty minutes before the test renders the results of the test inadmissible. We conclude that it does not, and affirm. * * *

Guy moved to suppress the breath test results. Concluding that the tongue stud was not a foreign substance under Ind. Admin. Code tit. 260, r. 1.1-4-8(1) (2004), the trial court denied her motion. The Court of Appeals reversed, holding that under the regulation a person to be tested must not have had any foreign substance in his or her mouth and that a tongue stud is a foreign substance. Guy v. State, 805 N.E.2d 835, 840-42 (Ind. Ct. App. 2004) vacated.

Posted by Marcia Oddi on Monday, April 04, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - SD Ind. decision re environmental activist now available

Judge Larry McKinney's 35-page ruling in Blair v. City of Evansville is now available here. For background see this March 18th ILB entry ("Federal Judge McKinney rules for environmental activist") and this one from March 19th.

Posted by Marcia Oddi on Monday, April 04, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals posts two today

Ryan McGinity v. State of Indiana (4/4/05 IndCtApp) [Criminal Law & Procedure]
Vaidik, Judge

Ryan McGinity appeals his eight-year sentence imposed pursuant to a plea of guilty to Operating While Intoxicated (“OWI”) Resulting in Death and Reckless Homicide. Specifically, he asserts that his enhanced sentence violates the United States Supreme Court’s recent decision in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004), reh’g denied, because his Sixth Amendment right to have the facts supporting the enhancement of his sentence tried to a jury was violated. Because we find one valid aggravator that does not violate Blakely and two mitigators, we vacate his sentence and remand to the trial court for resentencing. * * *

In the end there are two mitigators, namely, McGinity’s lack of criminal history and his character and attitude, and one valid aggravator—the nature and circumstances of the crime. It is undoubtedly true that one aggravator is sufficient to justify a sentence enhancement. Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002), reh’g denied. However, in this case we cannot say with confidence that the single remaining aggravator would have led to the same result. Day v. State, 560 N.E.2d 641, 643 (Ind. 1990). In other words, it is apparent to us that the impermissible factor, McGinity’s lack of remorse, played an important role in the trial court’s decision to enhance McGinity’s sentence. Id. In such a situation, we can remand for resentencing by the trial court or correct the sentencing on appeal. In this case, we choose the former. Reversed and remanded.
KIRSCH, C.J., and NAJAM, J., concur.

Pinkerton's Inc. v. Rita A. Ferguson (4/4/05 IndCtApp) [Worker's Comp]
Vaidik, Judge
Pinkerton’s, Inc., appeals the trial court’s declaratory judgment, which concluded that Pinkerton’s was not entitled to a worker’s compensation lien on proceeds paid to Rita Ferguson under the uninsured motorist provision of her personal automobile insurance policy and that Pinkerton’s liability to provide worker’s compensation benefits was not terminated by Ferguson’s receipt of those proceeds. Because we find that it would contravene public policy to permit Pinkerton’s to assert a lien on Ferguson’s insurance proceeds and that termination of benefits is not appropriate where claims against the third-party tortfeasor have not been extinguished by collecting proceeds under a personal insurance policy, we affirm. * * *
KIRSCH, C.J., and NAJAM, J., concur.

Posted by Marcia Oddi on Monday, April 04, 2005
Posted to Ind. App.Ct. Decisions

Ind. Law - More on "Impact of same sex marriage ban in Ohio and Michigan Constitutions may portend Indiana issues"

This ILB entry from March 24th discussed the problems that may result from the ban on providing any of the "legal incidences of marriage" to unmarried couples, as contained in subsection (b) of SJR 7. Problems in Ohio and Michigan were cited. Here is the wording of SJR 7's subsection (b):

(b) This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups.
Today the NY Times contains this article headlined "Gay Couples File Suit After Michigan Denies Benefits." Some quotes:
In November, Michigan voters, along with those in 12 other states, approved legislation to define marriage as an institution between a man and a woman. On March 16, Michigan's attorney general, Mike Cox, took that one step further, ruling that passage of the constitutional amendment meant that gay and lesbian state workers should be ineligible for health benefits for their partners in future contracts.

Michigan is not the only state in which a battle over the rights of same-sex partners is under way. But it has become the focus of attention with the filing of a lawsuit by the American Civil Liberties Union in which 21 same-sex couples are asking the state courts to clarify whether the amendment's passage means the loss of their benefits.

"A lot hinges on what happens in the case in Michigan," said Jeremy Bishop, program director for National Pride at Work, the A.F.L.-C.I.O.'s constituency group for gay workers. "If the courts rule unfavorably for us, then I can well imagine the right wing taking the same argument to all 13 states that passed these amendments last year." * * *

The first legal challenge to the amendments began in Michigan solely by chance, Mr. Glenn said, because a Kalamazoo city commissioner asked for an opinion from the attorney general about that city's workers.

"I do not believe that the voters of Michigan would have passed this amendment if they knew that it would mean taking away health benefits from same-sex partners," said Kari Moss, executive director of the American Civil Liberties Union of Michigan, which has filed suit against the governor in an effort to overturn the attorney general's interpretation.

Advocates for gay rights have argued since the amendment's passage in Michigan that proponents operated a kind of bait-and-switch on voters, pretending that they wanted only to strengthen the traditional concept of marriage when they were actually intending to roll back the rights that gay Americans have won over the decades. * * *

Meanwhile, supporters of traditional-marriage amendments are carrying the cause to more states. On Tuesday, Kansas residents will vote on an amendment to their Constitution. In Indiana and Virginia, amendments have passed the legislatures this year, but under the laws of those states they must pass again next year before going to voters. In Tennessee, an amendment will go to voters in November 2006.

Similar legislative efforts are under way in South Carolina, Minnesota and other states.

Not all states, however, are moving to restrict recognition of same-sex relationships. Efforts to ban same-sex unions failed this year in Maryland and Idaho. In Connecticut, a legislative committee has approved a bill allowing such unions.

And in Montana, one of the states that passed an amendment last year, the state university system's Board of Regents recently voted to extend benefits to the same-sex partners of university employees, arguing that such benefits do not constitute recognition of the couples as married.

Posted by Marcia Oddi on Monday, April 04, 2005
Posted to Indiana Law

Ind. Decisions - 7th Circuit posts one today

USA v. George, Gary R. (ED Wis.) [7 pp.]

Before EASTERBROOK, RIPPLE, and MANION, Circuit Judges. EASTERBROOK, Circuit Judge. Gary George served in Wisconsin’s Senate for 23 years, acquiring considerable influence over public expenditures. He was indicted in 2003 on charges that he accepted kickbacks in exchange for exercising that influence, which extended over federal grants as well as programs financed by state revenues. He pleaded guilty to violating 18 U.S.C. §371 (conspiracy to defraud the United States) as part of a bargain in which the prosecutor dismissed all other charges, and he was sentenced to 48 months’ imprisonment plus about $614,000 in restitution.

Four months after pleading guilty, George moved to dismiss the single count of conviction under Fed. R. Crim. P. 12(b)(3)(B) for failure to state an offense. Relying on United States v. Bloom, 149 F.3d 649 (7th Cir. 1998), George contended that the events narrated in the indictment did not violate 18 U.S.C. §1346 by depriving Wisconsin of his honest services. This motion is more than a little odd. By pleading guilty a defendant normally surrenders an opportunity to contest the merits, waiving (not just forfeiting) all arguments that could have been raised earlier. See United States v. Broce, 488 U.S. 563 (1989). And the plea agreement in this case made that explicit: ¶25 waives all matters that could have been raised by pretrial motion. Failure of the indictment to state an offense is such a matter. * * *

George submits that his sentence violates the sixth amendment, as the Supreme Court explained it in United States v. Booker, 125 S. Ct. 738 (2005). Yet the district judge understood the sixth amendment problem, for sentencing occurred after our opinion in United States v. Booker, 375 F.3d 508 (7th Cir. 2004), which the Supreme Court affirmed last January. The judge proceeded as if the Sentencing Guidelines were defunct, so that he had discretion to select any term within the statutory limits of zero to 60 months. Had the court followed the Guidelines, it would have sentenced George to the statutory maximum— for the sentencing range was 63 to 78 months, and George does not contend that there was any basis for a downward departure.

The Supreme Court’s decision in Booker shows that the Guidelines continue to inform district judges’ decisions. Judges need not rehearse on the record all of the considerations that 18 U.S.C. §3553(a) lists; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less. That’s the approach we have taken for decisions to reimprison a person after revoking supervised release, a subject on which the Guidelines always have been advisory rather than binding. See United States v. Salinas, 365 F.3d 582, 588-90 (7th Cir. 2004); United States v. Hale, 107 F.3d 526, 529-30 (7th Cir. 1997). It makes sense to follow the same approach for the Guidelines as a whole in Booker’s wake. Chief Judge Randa explained his decision. Had he known that the Guidelines continue to have substantial sway, he might have imposed a sentence closer to 60 months; it is inconceivable that anticipation of the ongoing need to start from and respect the Guidelines’ framework would have led to a lower sentence. Any error therefore was harmless. See Fed. R. Crim. P. 52(a). * * *

Posted by Marcia Oddi on Monday, April 04, 2005
Posted to Ind. (7th Cir.) Decisions

Environment - EPA to study air near large farms

"EPA to study air near large farms" is the headline to a story today by John Lucas in the Evansville Courier&Press. The lead:

People engaged in the large-scale production of poultry for companies such as Tyson Foods or Perdue Farms - as well as those who raise hogs or dairy cattle in similar confined animal feeding operations - have until July 1 to decide whether to participate in an air quality compliance agreement with the U.S. Environmental Protection Agency. The federal agency is proposing a two-year study of emissions from confined animal feeding operations, or CAFOs, to measure the amount of pollutants and hazardous substances they release into the air and to establish operating standards for the industry.
Some additional quotes:
For growers signing onto the consent, agreement comes at a cost. Most area broiler growers can expect to spend $2,700 to $3,000 to participate. That's a $200 or $500 fee regarded as a civil penalty plus $2,500 to help defray the cost of the monitoring. For larger growers with multiple farms, the fees are multiplied but won't exceed $100,000. They also have to agree to allow the EPA access to their barns to monitor emissions.

That, though, is unlikely since the agency has indicated plans to have only 28 monitoring sites nationwide for all three animal groups - poultry, swine and dairy cattle. Although both Tyson Foods and Perdue Farms say they have made growers aware of the EPA air quality compliance agreement, the companies appear to be offering little guidance to contract growers about participation.

"We have advised our independent contract producers that the document is available and did send them a synopsis of the consent agreement," said Joe Forsthoffer, a spokesman for Perdue Farms. "Since the consent agreement is an enforceable order and, therefore, a legal document, it is inappropriate for us to give legal advice to independent contractors."

Tyson spokesman Gary Mickelson, too, said his company had made growers aware of the agreement. Neither spokesman indicated whether the companies would enroll company-owned and operated houses in the monitoring program. The poultry companies also have not indicated they would share the cost of participation with the growers.

Trade associations for hog and egg producers have set aside some money to help pay the fees for those producers who participate in the agreement.

Estimates for the threshold size of other confined animal operations that would likely produce sufficient ammonia for reporting are 225 sows in a farrow-to-finish hog barn up to 1,000 sows in a farrow-to-feeder barn. Numbers vary depending on how manure is stored and treated. About 300 lactating cows under roof appears to be the threshold for dairy cattle.

More information is available in this ILB entry from 1/22/05, titled "EPA plan offers farms immunity from air pollution violations." Also, this one from 1/30/05.

Posted by Marcia Oddi on Monday, April 04, 2005
Posted to Environment

Ind. Law - Symposium on Law School Rankings

Indiana University School of Law—Bloomington is holding a symposium called "Next Generation of Law School Rankings" on April 15th. Here is a link to more information. Here are some quotes:

The U.S. News & World Report annual law school rankings are the 800-pound gorilla of legal education. Although met with varying degrees of skepticism and hostility, the U.S. News rankings affect virtually all aspects of law school operations. A myriad of alternative rankings have emerged in recent years, seeking better and more accurate ways of measuring law school performance.

The goal of this symposium is to deepen our understanding of rankings and their effects on legal education. The participants in this symposium will examine the need for law school rankings; the effects of rankings on legal education; and the various new approaches to addressing the public's insatiable demand for ever more and increasingly sophisticated rankings, which permeate not only legal education but also all aspects of American life.

Among the participants listed (paper only) are Richard Posner and Cass Sunstein.

IU-Indy Law grads will recall this earlier entry headed "IU-Indianapolis Law reportedly tumbles in U.S.News rankings."

Posted by Marcia Oddi on Monday, April 04, 2005
Posted to Indiana Law

Sunday, April 03, 2005

Ind. Gov't. - IEDC fails early public records test

Brendan O'Shaughnessy of the Munster (NW Indiana) Times reports today that "IEDC fails early test of open records: New agency refused to release public records until public access counselor advised it to do so." Some quotes:

It took an informal inquiry opinion issued this week by the Indiana Public Access Counselor to get the state's new development agency to release public records about an embattled Gary nonprofit.

When lawmakers sped up the creation of the Indiana Economic Development Corp. at the request of Gov. Mitch Daniels in January, some Democrats expressed concerns the new public-private organization would not be as open to public scrutiny as the Commerce Department it replaced.

The corporation's early record -- incorrectly denying one of its first handful of requests -- indicates the doubters may have been justified * * *.

Nate Feltman, the corporation's vice president and general counsel, denied access to documents prepared by Crowe Chizek and Co. LLC, because the documents were preliminary and not a final report. Feltman said he wanted to protect possibly innocent people from alleged facts in a document that hadn't been reviewed. "As a lawyer, I want to not do something that may hurt someone," Feltman said after turning over part of the report. "I was trying to make sure we're not throwing facts out there that aren't accurate."

Public Access Counselor Karen Davis wrote that the denial failed to cite a specific exemption from disclosure because there is no exemption for preliminary or draft reports. The law allows an agency to withhold "deliberative" material that contains a private contractor's opinions, recommendations or advice for the IEDC board.

IEDC outside counsel Sue Beesley wrote in a letter, with the factual documents, that the agency "is exercising its discretion not to disclose those (deliberative) portions of the report."

I'll try to get a copy of the informal opinion of the public access counselor (who posts only "formal," as opposed to "informal," PAC advisory opinions) and Ms. Beesley's letter.

Posted by Marcia Oddi on Sunday, April 03, 2005
Posted to Indiana Government

Ind. Econ. Dev. - State takes steps to help farmers

"State takes steps to help farmers" is the headline to an opinion piece today in the Bedford Times-Mail. Some quotes:

State government took two steps this week that could make life better for Hoosier farmers.

On Thursday, the Indiana Senate passed a bill creating an Indiana Department of Agriculture. And on Friday, Gov. Mitch Daniels signed a new law that would boost the use of agriculture-based fuels, like ethanol.

It is far too early to tell if either measure will reach its full promise. But it is encouraging to see the state trying to make the most of Indiana's strong agricultural resources.

The department of agriculture idea is not new. In fact, Indiana trails several other states in pulling the agriculture-related efforts under one umbrella. It is important to note this is not an expansion of government, but a more logical and effective use of what is already in place. * * *

House Bill 1008
would create a department of agriculture and a separate office of rural affairs. Skillman will hold the position of secretary of agriculture and rural development. Andy Miller, the current assistant commissioner of agriculture, will act as the state's first director of agriculture. During the next several months, the structure and function of both agencies will be determined. The administration plans a great unveiling — appropriately enough —at the Indiana State Fair this August.

If done well, the department of agriculture and the office of rural affairs could put a new focus on economic development in Indiana's hard-hit rural areas.

Among the ideas, of course, is finding new markets for Indiana's farm products. And one of those markets could soon be put to use through the alternative fuel plan.

The bill signed by Daniels [HB 1032] stipulates that state government must run its vehicles on agriculture-based fuels such as biodiesel, ethanol or gasohol whenever possible.

Posted by Marcia Oddi on Sunday, April 03, 2005
Posted to Indiana economic development

Courts - Threats to judges

The Chicago Tribune has a lengthy story today headlined: "Ross' threats not heeded: Legal system was unfazed by repeated `warnings' of Lefkow killer." A quote:

In the suicide note found in his van, Ross wrote that he had been warning the courts and others involved in his cases of what he would do, referring to his "over 10 years long multiple stating that I would get my own justice if I was deprived governmental justice."

Some legal authorities now recognize that, cumulatively, Ross had indeed given them an indication of where he was headed. They say their struggle is how to sort out the few who would carry out violence from the many who threaten it. Court officials and investigators who looked into Ross' threats at the time maintain that it would have been difficult to take harsher action against him.

Nevertheless, some judges and lawyers are calling for reforms, ranging from greater emphasis on assessing the mental health of contentious plaintiffs to creating a database that would flag people who make repeated threats.

"Maybe there needs to be a mechanism where all of these just get taken to the state police and they run them down. Like they do with the president....I think it's probably something that needs to be addressed," said Roger Sommer, who was chief justice of the state Court of Claims in 1996, when Ross sent one of his threats there.

Meanwhile, the Terre Haute Tribune-Star had a story earlier this week headlined "Vigo judge allegedly threatened: Police arrest Terre Haute man." Some quotes:
A Vigo County man is behind bars for allegedly using electronic mail and a personal Web site to threaten Vigo Superior Court Division 1 Judge Michael H. Eldred. * * *

Last week, Stout allegedly sent an e-mail that threatened Eldred to Meg W. Babcock, counsel for the Commission on Judicial Qualifications for Indiana.

The threat stated: "OK, now I've had it Š These SOB's are going down. One at a time or en mass, doesn't matter to me Š Lyers [sic] kill me once then kick me out of their system. Now I've had it."

Babcock went to a hyperlink on Stout's personal Web site and verified that the threat was directed to Eldred, court papers show. On Saturday, she responded to Stout's e-mail and asked him to call her office on Monday. She notified Indiana State Police and Eldred, and city police learned Monday of the alleged e-mail.

Bill Bergherm, city police chief of investigations, went to the Web site and found a number of statements of a threatening nature, court records show.

Posted by Marcia Oddi on Sunday, April 03, 2005
Posted to Indiana Courts

Courts - Misdemeanor public defenders focus of Fort Wayne Journal Gazette editorial

The Fort Wayne Journal Gazette has a lengthy editorial about the misdemeanor caseloads carried by Indiana public defenders. Access it here.

Posted by Marcia Oddi on Sunday, April 03, 2005
Posted to Indiana Courts

Environment - Pollution-control debate in Louisville pits public health against economy

Here is a story from the Louisville Courier Journal illustrating the classic clash. The report begins::

It's a clash pitting public health vs. the bottom line, and competing ideas about how to make the city prosper.

Metro Mayor Jerry Abramson's administration, saying it's trying to create a healthier, more attractive community to retain and draw so-called "knowledge workers," wants to set stringent health-risk goals and standards for toxic chemicals, focusing on 37 of them. Its proposal, called the Strategic Toxic Air Reduction program, is being considered by the Louisville Metro Air Pollution Control Board.

But local industry and Greater Louisville Inc., the metro chamber of commerce, argue that the proposed standards would be unfairly onerous to industrial plants that employ thousands of workers and would make it more difficult to attract new manufacturing jobs.

Air-district regulations require the board to take into account the criticism from the chamber of commerce, along with comments from hundreds of others, before making a decision on adopting the program. That could take several weeks and might result in revisions to the plan, said Art Williams, director of the pollution-control agency.

And Greater Louisville Inc. is pushing for major revisions. A chamber team of lawyers and technical experts has offered up an alternative proposal after a line-by-line editing of the city's package of 20 new or amended regulations, which are highly technical. That version proposes cancer-risk standards as much as 100 times less stringent than the city's. It also would reduce the number of chemicals subject to review.

"We think our (proposal) has real teeth in it," said Frost Brown Todd attorney Dennis J. Conniff, who leads the chamber task force. "It was not an attempt to gut the program." It was meant, he said, to require industry to do all it can to reasonably limit emissions.

Environmentalists are skeptical. "Industry likes to frame the debate in terms of what degree of risk is reasonable to foist onto the public, but the real issue is whether it is appropriate to use the public's air for waste disposal at all," said Tom FitzGerald, director of Kentucky Resources Council.

Eboni Cochran, a board member of Rubbertown Emergency Action, a group focused on 11 chemical plants in western Louisville, said: "We want the best standards or health criteria available. Any cancer risk to us is unacceptable."

Posted by Marcia Oddi on Sunday, April 03, 2005
Posted to Environment

Saturday, April 02, 2005

Ind. Law - Judge hears arguments to prevent Floyd subdivision suit

Ben Zion Hershberg of the Louisville Courier Journal has a report today headlined "Judge hears arguments to prevent Floyd subdivision suit." Some quotes:

Lawyers for the Floyd County Plan Commission and a developer argued yesterday that a citizens' group doesn't have the right to sue the commission in an effort to overturn its approval of a subdivision near Greenville.

The arguments were made during a hearing before Special Judge Daniel Donahue on a suit filed by the Greenville Concerned Citizens after the commission approved the 98-acre Heritage Springs subdivision in August.

At issue is whether the organization has standing to sue, said Greg Fifer, the lawyer for Thieneman Development Co., and Derrick Wilson, the commission's lawyer.

Indiana law and decisions in numerous state court cases state that an individual or organization must be directly harmed by a subdivision before it can sue to stop it, Fifer said.

Generally, he said, if an individual or an organization doesn't own land adjacent to a subdivision, the courts have ruled there is no legal standing to sue.

The citizens' group hasn't shown that it owns any land in the area, Fifer said, and it hasn't provided evidence that its members own land next to Heritage Springs.

He asked Donahue to dismiss the case, based on the group's failure to prove it has standing. He argued that an attempt by Michael Gillenwater, the group's lawyer, to amend the lawsuit shouldn't be allowed because it was filed in February, after statutory deadlines had passed.

Fifer and Wilson acknowledged during the hearing that an Indiana Court of Appeals decision in January appears to expand the rights of citizens' groups in such cases.

But, the lawyers said, the decision involved a case filed under administrative procedures, not planning and zoning law. So, they said, the Greenville group still lacks grounds to sue.

Gillenwater disagreed, saying the Court of Appeals' decision cites a federal case that establishes guidelines for determining whether organizations can sue. The Greenville group meets those guidelines, he said.

I believe the Courts of Appeals decision referenced is Save the Valley v. IKEC (1/11/05), which dealt with associational standing. For background, see this 1/13/05 ILB entry.

I checked the docket on Save the Valley and the latest entry is from 3/31/05:

WE GRANT THE APPELLEES' PETITION FOR REHEARING; HOWEVER, WE
AFFIRM OUR OPINION IN ALL REGARDS. WE ISSUE THIS OPINION ON
REHEARING TO ADDRESS AN ARGUMENT RAISED BY IKEC FOR THE FIRST
TIME IN ITS PETITION FOR REHEARING AND TO CLARIFY THE ISSUE OF
THE TRIAL COURT'S SUBJECT MATTER JURISDICTION. --- BARNES, J.
NAJAM, J., AND SULLIVAN, J., CONCUR
Here is the Court of Appeal's opinion on rehearing from that date.

Posted by Marcia Oddi on Saturday, April 02, 2005
Posted to Indiana Law

Law - [Updated] Contraceptive Rxs ordered filled: Druggist refusal spurs Illinois governor to enter fray

The Chicago Tribune reports today:

Gov. Rod Blagojevich filed an emergency rule Friday informing all pharmacies in the state that if they sell contraceptives, they must dispense them without delay.

The action was in response to the refusal by a pharmacist to fill prescriptions for two women who wanted emergency morning-after pills.

Also Friday, the governor's Department of Financial and Professional Regulation filed an administrative complaint against the Osco store in the Loop where an unidentified pharmacist twice in February declined to fill the women's prescriptions on moral grounds.

The governor and activist groups say there has been an increase across the country of pharmacists refusing to fill prescriptions for morning-after contraception. Some pharmacists who oppose filling the prescriptions have said they feel the pills stop the life of an early human embryo.

But Blagojevich said his new regulation makes it clear that if a woman goes to a pharmacy with a prescription, the pharmacy can not selectively choose which it dispenses or to whom they are sold.

"The pharmacy will be expected to accept that prescription and fill it," he said. "No delays. No hassles. No lectures."

[More] The Washington Post has this story today.

[Updated 4/3/05] It turns out the Washington Post ran a lengthy article last Monday, March 28, titled "Pharmacists' Rights at Front Of New Debate: Because of Beliefs, Some Refuse To Fill Birth Control Prescriptions." Some quotes:

Some pharmacists across the country are refusing to fill prescriptions for birth control and morning-after pills, saying that dispensing the medications violates their personal moral or religious beliefs.

The trend has opened a new front in the nation's battle over reproductive rights, sparking an intense debate over the competing rights of pharmacists to refuse to participate in something they consider repugnant and a woman's right to get medications her doctor has prescribed. It has also triggered pitched political battles in statehouses across the nation as politicians seek to pass laws either to protect pharmacists from being penalized -- or force them to carry out their duties. * * *

Pharmacists are regulated by state laws and can face disciplinary action from licensing boards. But the only case that has gotten that far involves Neil T. Noesen, who in 2002 refused to fill a University of Wisconsin student's birth control pill prescription at a Kmart in Menomonie, Wis., or transfer the prescription elsewhere. An administrative judge last month recommended Noesen be required to take ethics classes, alert future employers to his beliefs and pay what could be as much as $20,000 to cover the costs of the legal proceedings. The state pharmacy board will decide whether to impose that penalty next month. * * *

Wisconsin is one of at least 11 states considering "conscience clause" laws that would protect pharmacists such as Noesen. Four states already have laws that specifically allow pharmacists to refuse to fill prescriptions that violate their beliefs. At the same time, at least four states are considering laws that would explicitly require pharmacists to fill all prescriptions.

This link leads to a Washington Post table of refill laws by state. Although it lists Indiana as considering a new law, the only pharmacy bill I can locate still alive is SB 590, relating to electronic transmission of prescriptions.

The NY Times has an editorial today (4/3/05) on this topic, titled "Moralists at the Pharmacy." It begins:

Scattered reports suggest that a growing number of pharmacists around the country are refusing to fill prescriptions for contraceptives or morning-after birth control pills because of moral or religious objections. Although the refusals are cast as important matters of conscience for self-described "pro-life" pharmacists, they have the pernicious effect of delaying, and sometimes even denying, a woman's access to medications that may be urgently needed. This is an intolerable abuse of power by pharmacists who have no business forcing their own moral or ethical views onto customers who may not share them. Any pharmacist who cannot dispense medicines lawfully prescribed by a doctor should find another line of work.

Posted by Marcia Oddi on Saturday, April 02, 2005
Posted to General Law Related

Ind. Gov't. - State error hikes 170,000 new tax bills; the Star finds the error

The Indianapolis Star reports today, in a story by John Fritze:

Nearly half of the Marion County property tax bills sent out this week -- at least 170,000 -- were mistakenly inflated because of a state error.

A miscalculation of a local tax credit, which is supposed to reduce property taxes, caused many bills to increase by anywhere from a few dollars to several hundred -- depending on the home's location and its assessed value.

Melissa Henson, the commissioner of the state Department of Local Government Finance, confirmed the error, which was found after The Indianapolis Star analyzed the latest tax rates and found discrepancies. The Star contacted Marion County officials, who then contacted the state. The problem applies only to Marion County, Henson said.

Residents affected by the slip-up should still pay their spring tax bill, due May 10, according to the county. The overcharge will be credited automatically to accounts when the fall property taxes are collected in November, county Treasurer Mike Rodman said.

Taxpayers and elected officials were dismayed when told about the problem Friday.

"It hurts government's credibility with the taxpayers when we can't get this stuff right," said City-County Councilwoman Jackie Nytes, a Democrat.

Government offices -- from the county treasurer to local township assessors -- reported that an abnormally high number of residents had been calling in recent days with questions about their tax bills.

Well, yes, but it looks from the story like no one that taxpayers called at the governmental level looked into the problem. Fortunately the Star did, or this problem might have compounded for who knows how long (as we have seen in the past). And, according to the story, more than 170,000 taxpayers now are each going to be loaning local government, interest-free, several hundred dollars for six months. That is $34 million ...

Posted by Marcia Oddi on Saturday, April 02, 2005
Posted to Indiana Government

Friday, April 01, 2005

Ind. Law - More on IU-Indy Law drop in US News rankings

I've just received this note from Josh Claybourne, a foolow-up to this earlier ILB entry:

I'm not sure if your readers are interested in details of the US News
rankings, but we've investigated and can provide this report.

Also, earlier in the day I post an April Fool's joke that the school
would change its name
.

It apparently fooled a lot of people, flooded the administration with
calls, and even sent the local media digging. Fun stuff!

When I checked, the name change entry (to "Benjamin Harrison Law School," not a bad idea at all!) had over 40 comments, some irate.

Posted by Marcia Oddi on Friday, April 01, 2005
Posted to Indiana Law

Ind. Decisions - Court of Appeals posts one today

Carole Jurich v. John Crane, Inc., et al. (3/31/05 IndCtApp) [Torts; Statute of Repose]
Barnes, Judge

* * * We restate the issue before us as whether the trial court properly concluded that the ten-year statute of repose of the Product Liability Act (“PLA”) barred the Appellants’ claims against the Appellees for asbestos-related diseases that caused the decedents’ deaths. * * *

The Appellants also argue that the PLA statute of repose imposes an impossible condition on their access to the courts to pursue a tort remedy, in contravention of Article 1, § 12 and Martin v. Richey. The author of this opinion was sympathetic to their position, as reflected in Jurich I. See footnote However, a majority of our supreme court rejected that position in Ott. The Appellants are essentially asking us to contravene that case. As an intermediate appellate court, we cannot revisit, reverse, or otherwise attempt to circumvent the holding of Ott. See Red Arrow Ventures, Ltd. v. Miller, 692 N.E.2d 939, 946 (Ind. Ct. App. 1998), trans. denied. Accepting the Appellants’ position would essentially turn Ott’s narrow “exception” to the PLA statute of repose into a very broad one, applicable in most if not all asbestos cases, and mark a return to the reasoning of Jurich I. We cannot do that, and are bound by the precedent set by our supreme court.

Conclusion. The Appellants failed to present any evidence that a “reasonably experienced physician” could have diagnosed either Mr. Jurich or Mr. Serna with “an asbestos-related illness or disease” within ten years of the last delivery of any of the Appellees’ asbestos-containing products. The trial court, therefore, properly concluded that there are no genuine issues of material fact and that the Appellees are entitled to summary judgment as a matter of law because the Appellants’ claims are time-barred by the PLA statute of repose. We affirm. Affirmed.
MAY, J., and DARDEN, J., concur

Posted by Marcia Oddi on Friday, April 01, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending April 1, 2005

Here is the Indiana Supreme Court's transfer list for the week ending April 1, 2005. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column. Several cases were granted transfer.

Posted by Marcia Oddi on Friday, April 01, 2005
Posted to Indiana Transfer Lists

Ind. Decisions - 7th Circuit posts four today

USA v. Mykytiuk, Robert (WD Wis.) [11 pp.]

Before POSNER, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. After executing a state search warrant for Robert Mykytiuk’s residence and truck, Wisconsin law enforcement officers found a handgun and equipment, materials, and chemicals used to manufacture methamphetamine. Later, federal prosecutors took over the case, and Mykytiuk moved to quash the search warrant and suppress the evidence. The district court denied the motion. Mykytiuk then entered a conditional guilty plea to one count of possessing pseudoephedrine with intent to manufacture methamphetamine, see 21 U.S.C. § 841(c)(2), and one count of possessing a firearm in furtherance of drug trafficking, see 21 U.S.C. § 924(c)(1)(A), reserving in his plea agreement the right to challenge the denial of his motion to suppress. The district court sentenced him to 90 months’ imprisonment on Count One and 60 months’ imprisonment on Count Two, to run consecutively. On appeal, Mykytiuk challenges the denial of his motion to suppress, arguing that the warrant was too broad and that the court erred in applying the good-faith doctrine. We conclude that the evidence was admissible under United States v. Leon, 468 U.S. 897 (1984), and we therefore affirm the judgment of conviction. Mykytiuk’s challenge to his sentence, however, cannot be resolved until after a limited remand for further proceedings in the district court.

Murillo, Edward A. v. Frank, Matthew (ED Wis.) [12 pp.]

Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges.
EASTERBROOK, Circuit Judge.

[A question here is whether Crawford applies retroactively on collateral review. [p. 8] "This shows, as the tenth circuit observed in Brown, that Crawford cannot have established the sort of indispensable doctrine that applies retroactively even to closed cases."]

USA v. Newsom, Ernest (SD Ind., Larry J. McKinney, Chief Judge) [11 pp.]

Before BAUER, POSNER, and WOOD, Circuit Judges. WOOD, Circuit Judge. Ernest Newsom was caught with child pornography on his computer, including pictures of his own daughter and his ex-girlfriend’s daughter. He was charged and found guilty of receipt, possession, and production of child pornography. Newsom appeals from the district court’s denial of his motion to suppress evidence recovered from his home and computer and from two sets of sentencing enhancements. We affirm the district court’s denial of his motion to suppress and the sentencing enhancements. We order a limited remand to the district court for consider ation whether Newsom’s sentence would be different in light of United States v. Booker, 125 S.Ct. 738 (2005), in keeping with the procedure established in United States v. Paladino, Nos. 03-2296 et al., 2005 WL 435430 (7th Cir. Feb. 25, 2005). In order to allow the court to take into account the sentence that the Guidelines would advise, along with other pertinent factors, we discuss Newsom’s Guidelines arguments in this opinion. * * *

[Court discusses "Grouping Enhancement" and "Vulnerable Victim Enhancement']

We therefore AFFIRM the judgment of conviction. We order a LIMITED REMAND to the district court for further consideration of Newsom’s sentence, which should be undertaken in conformity with the procedures spelled out in Paladino. This court will retain jurisdiction over the appeal during the pendency of the limited remand.

Gallo-Vasquez, Carlo v. USA (ND Ill.) [13 pp.]

Before FLAUM, Chief Judge, and BAUER and KANNE, Circuit Judges
FLAUM, Chief Judge. Carlos Gallo-Vasquez moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, alleging that his counsel at trial and on direct appeal provided him with ineffective assistance. The district court dismissed the motion without holding a hearing or requiring the government to respond. Gallo-Vasquez appeals. Because the record conclusively shows that petitioner is not entitled to relief, we affirm.

Posted by Marcia Oddi on Friday, April 01, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Public records stories in the news

"County finishes first digital step to save records" is the headline to a story today in the Fort Wayne Journal Gazette. Some quotes:

Allen County completed the first phase of an effort to digitize aging records to preserve them and make them more accessible to the public.

County Recorder Pat Crick on Thursday presented the county’s new ePlat system, which allows anyone to electronically search through more than 6,500 property plats and surveys with little to no assistance. She said it was necessary to begin digitizing the records because some were more than 150 years old.

“There are some that are so brittle that all you’ve got to do is touch them and they’ll fall apart,” she said.

The county hired Global Systems Inc., of Fort Wayne, which began working on the project at the beginning of last year. The new searchable database went online in late 2004.

Deepak Gandhi, Global Systems president, said the project was important because the records – by law – must be kept forever. * * *

The county paid Global $63,495 to digitize its old plat books, which date to 1825. The money was paid from the recorder’s perpetuation fund, which generates money from fees paid to record documents.

The scanned documents were corrected when errors were found and indexed for quick searching. The removal of the plat books, which will be kept in storage, freed up 10 percent of Crick’s office space.

The plats include maps and property lines of subdivisions around the county. Gandhi said the records are used by attorneys, title companies and even residents trying to resolve border disputes with neighbors. Recently, Verizon has accessed several plats as it searches for public right-of-way to install its fiber-optic network. * * *

Although the documents will be digitized, they can be searched onlyat the county recorder’s office. Irving suggested putting the records online and allowing residents to pay for them with a credit card through the county system.

The next step for Global System will be to index the county’s microfiche records into the digital system.

Meanwhile, the South Bend Tribune reported yesterday that St. Joseph County had cut a deal with the Board of Realtors to give them special access to property tax files. Some quotes:
The St. Joseph County commissioners have approved an information-sharing agreement that will give county and township assessors and the Board of Realtors access to each other's files. * * *

The information-sharing agreement has been in the works for several weeks. In February, the commissioners approved a contract with Plexis, an Indianapolis company, to create a computer program that gives Realtors direct access to property tax files.

Those files are and have been public records available to anyone. The computer program simply makes getting access more convenient for Realtors, who will be able to get the information from their computers.

In return, the County Assessor's office and assessors in Portage, Penn and Clay townships will get access to the Realtors' multiple listing service records and be able to use that information to update property valuations on an annual basis.

The move would help put the mechanism in place for those adjustments, sometimes referred to as "trending."

Legislation currently before the Indiana General Assembly would postpone those annual adjustments until 2006 and delay the next general reassessment by two years, to 2011.

Dobson said the shift to trending will help assessors follow the market and keep track of neighborhood valuations, while Realtors will get information from the county's database such as lot sizes and home sizes that will help them set prices.

No cash is involved, Dobson said, just an exchange of data.

Posted by Marcia Oddi on Friday, April 01, 2005
Posted to Indiana Government

Indiana Law Blog report

Checking the Indiana Law Blog stats for the month of March, I'm happy to report that, according to Sitemeter, the ILB's page views for March 2005 were nearly 12,000. Certainly NOT in the league of How Appealing, but not bad. Please continue to talk us up!

Posted by Marcia Oddi on Friday, April 01, 2005
Posted to About the Indiana Law Blog

Ind. Law - More on taking private property for private development

The Munster (NW Indiana) Times has an interesting story today that begins:

VALPARAISO | Describing the city's offer as "grossly inadequate," LNR Valparaiso LLC rejected it and gave notice it intends to challenge the planned condemnation of the County Seat Plaza.

In a letter to Patrick Lyp, lawyer for the city's Redevelopment Commission, Alan Townsend, lawyer for LNR, said it appears the city is misusing its powers of eminent domain to benefit a private entity. Urschel Development Co. has agreed to buy the plaza from the city and invest $6.5 million to redevelop it.

Townsend said LNR officials took ownership of the plaza in February 2004, and Urschel approached them in October and offered to buy it for $8.5 million on the condition that LNR find another location for the Big Lots and Family Dollar stores. That offer was rejected, but instead of negotiations continuing as LNR expected, "Urschel abruptly broke off the discussions and they never resumed," Townsend said.

"Instead, within weeks after the negotiations with Urschel broke down, LNR learned that the commission was interested in acquiring County Seat Plaza via eminent domain and that, thereafter, Urschel likely would be involved in its redevelopment," Townsend said. "It appears to us that Urschel enlisted the use of the commission's eminent domain powers after it failed to come to terms with LNR on its own.

"I can assure you that LNR has every intention of challenging the manner in which the commission is making use of (the Indiana law on blighted areas) as it was never intended to utilize public funds to transfer the ownership of real estate from one private party to another," he said.

Meanwhile, Rep. David A. Wolkins' eminent domain bill [HB 1063], which as introduced "would require any government body acquiring land through eminent domain for commercial purposes to pay the property owner 150 percent of its assessed value, taken from the highest of three appraisals," appears to have been totally "de-toothed" in Senate committee. Read the latest version here.

Here is the most recent ILB entry on HB 1063, from March 15th.

Posted by Marcia Oddi on Friday, April 01, 2005
Posted to Indiana Law

Ind. Courts - Chief Judge Kirsch ' senior law clerk appointed Johnson County juvenile magistrate

The Johnson County Daily Journal has a story titled "Center Grove grad to lead juvenile court." Some quotes:

Clark, a Center Grove graduate and senior law clerk who has worked for the top judge at the Indiana Court of Appeals, has been named the county’s new juvenile magistrate. She will preside over legal disputes involving families and juveniles, such as crimes committed by children and teens. * * *

Johnson Circuit Judge Mark Loyd chose her from a list of 10 people who applied for the judicial post, which has been vacant since magistrate Craig Lawson’s death Jan. 27.

Loyd said he looked to Clark’s legal experience in the Indiana Court of Appeals, where she has served for seven years, most recently as a senior law clerk for Chief Judge James S. Kirsch.

“She’s able to handle administrative needs and legal work of the court,” Loyd said. “She certainly has an interest in being a judicial officer, and this way the court and public can see what kinds of talents she has.”

At the state’s highest appeals court, Clark has been responsible for training other clerks, researching appeals cases, writing legal briefs and managing caseloads for the appellate judge, she said.

Kirsch described Clark as a model employee who loves people and the law and is very capable of sitting on the bench because of her administrative abilities.

By sitting in the appeals court, Kirsch said, she will be able to better understand what effect her decisions at the trial court level will have. * * *

Clark has been a substitute judge in Johnson County courtrooms for more than three years, which Loyd said he took into consideration.

Posted by Marcia Oddi on Friday, April 01, 2005
Posted to Indiana Courts

Ind. Law - [Updated] House unanimously OKs revamping sentencing rules

"House unanimously OKs revamping sentencing rules" is the headline to a brief story today by Niki Kelly of the Fort Wayne Journal Gazette. She writes:

The Indiana House voted unanimously Thursday to significantly alter Indiana’s criminal sentencing scheme in response to U.S. and Indiana Supreme Court decisions. Currently in Indiana, judges sentence criminals via a guideline that provides a presumptive sentence but allows the judge to add or subtract specific amounts of time for mitigating or aggravating circumstances. For instance, someone convicted of rape faces a presumptive sentence of 10 years to which 10 years could be added and four years could be subtracted.

But the U.S. Supreme Court ruled that any factors used to enhance a sentence have to be proven to a jury. That means judges can’t use additional information to add to the presumptive sentence without a separate jury proceeding. The Indiana Supreme Court recently issued a similar opinion.

To meet the new rules, Senate Bill 96 removes presumptive sentences from Indiana’s scheme – leaving a wide range of years for judges to choose from, said Rep. Luke Messer, R-Indianapolis. A judge would not have to find aggravating circumstances to give a criminal the maximum sentence, according to Messer. The old presumptive sentence will still be the advised prison term but is not binding.

The bill now goes back to the Senate for a vote to concur in the House changes, or to send it to a conference committee to iron out differences.

Also on Indiana sentencing, I highly recommend to you Michael Ausbrook's blog, INCourts, where he has been commenting upon the Indiana Supreme and Appeals Court post-Blakely decisions. I particularly recommend his posts from March 30 and 31, titled "Smylie: A Trip to the Nether World of the NFP," and "Payne & Campbell: More from the Nether World."

[More] See this entry in Sentencing Law & Policy blog, the gist of which is:

INCourts reports here (building on a report from the Indiana Law Blog here) that "there has been an amendment to [Indiana's] Senate Bill 96, the General Assembly's attempt to deal with Blakely, that would appear to Booker-ize Indiana's sentencing statutes." Before the amendment, Indiana's legislative fix was headed toward Blakely-izing (which is the remedy now in place because it was adopted by the Indiana Supreme Court in its big Smylie decision earlier this month.

Posted by Marcia Oddi on Friday, April 01, 2005
Posted to Indiana Law